CATHERINE WAWIRA NJIRU VS THE GOVERNOR EMBU COUNTY AND COUNTY EXECUTIVE COMMITTEE MEMBER,WATER IRRIGATION ENVIRONMENT AND NATURAL RSOURCES EMBU COUNTY AND 3 Others

1. The petitioner herein filed a petition dated 02^nd May 2023 challenging the appointment of the interested party as the director of the 3^rd respondent. Through the petition, the petitioner seeks the following:
   1. A declaration that the actions of the 1^st and 2^nd respondents in nominating and appointing the interested party a director from Mbeere South whereas he does not meet the minimum requirements for appointment as a director is discriminative and unconstitutional;
   2. An order of prohibition restraining the 3^rd respondent from appointing the interested party as a director representing Mbeere South;
   3. An order of prohibition restraining the 1^st and 2^nd respondents and the interested party from interfering with the running of the 3^rd respondent’s affairs and usurping the role of the stakeholder’s forum, the select committee and the annual general meeting, contrary to the provisions of the Companies Act 2015 and the water Act 2016 as read together with the constitution;
   4. A mandatory order of injunction compelling the 3^rd respondent to convene a special general meeting within 21 days and proceed with the business of appointing a qualified director representing Mbeere South sub-county who meets the threshold set in the gazette advertisement dated 03^rd April 2023;
   5. Any other relief that the court may deem fit to grant; and
   6. Costs of the petition.
2. It was the petitioner’s averment that the actions of the 1^st and 2^nd respondents to nominate and purport to appoint the interested party as a director in the 3^rd respondent was unprocedural, discriminatory and unconstitutional and was a ploy to reward the interested party’s political loyalty to the 1^st and 2^nd respondents. Further, that the said appointment contravened the guidelines set by the 4^th respondent on how the 3^rd respondent ought to run its affairs. It was the petitioner’s case that the interested party’s appointment violates the 3^rd respondent’s revised memorandum and articles of association, the Companies Act, Water Act and the 4^th respondent’s Corporate Governance Guidelines for the Water Sector 2019.
3. The petitioner stated that according to the gazette advertisement, the incumbent was to hold the following qualifications:
   1. Minimum bachelor’s degree from a recognized university in the following background: finance, accounting, engineering, human resource, law, business/management systems or information technology;
   2. Minimum of 7 years working experience in the core profession or has run own enterprise for a minimum of 7 years; and
   3. Must be nominated by a stakeholder group registered with EWASCO.
4. That the interested party holds a bachelor’s degree and postgraduate diploma in Education, which is not one of the courses listed in the advertisement, yet he was shortlisted for the position of director of the 3^rd respondent. That the 1^st and 2^nd respondents’ actions contravene several provisions of the constitution hence hindering national values supporting devolution of power and resources. She contended that the actions of the 1^st, 2^nd and 3^rd respondents are ultra vires and they violate Articles 10, 20, 21, 46, 47(2), 79 and 232 of the constitution.
5. The interested party filed a replying affidavit stating that when the director positions at the 3^rd respondent were advertised, he applied and was shortlisted on merit. That he holds a Bachelor of Arts Degree from the University of Nairobi with a background in Economics and Sociology and the degree had economics and finance disciplines in it. He annexed copies of the degree certificate together with transcripts. That as of April 2023, the 3^rd respondent’s memorandum and articles of association were dated 10^th July 2015 and they were amended in 2021 through a special resolution. However, the amendments were not filed with the registrar of companies in accordance with section 24(1) of the Companies Act, thus rendering them ineffective.
6. He deposed that the amendments were filed with the registrar of companies on 31^st October 2023, thus, the amended memorandum and articles of association were in in operation by the time he was appointed as a director of the 3^rd respondent. That in as much as the petitioner has heavily relied on the amended version of the memorandum and articles, the same had not been formalized by the registrar of companies. That his qualification meets the requirements of article 67 of the 3^rd respondent’s memorandum and articles of association dated 10^th July 2015.
7. He stated that the 4^th respondent’s corporate governance guidelines 2018 were stayed by the High Court in Murang’a through Constitutional Petition No. 2 of 2022 in the case of Peter Maina Karema v. Gatamathi Water & Sanitation Co. Ltd & WASREB, thus they have no legal effect. He urged that the petition is premature citing the doctrine of exhaustion in light of article 87 of the 3^rd respondent’s memorandum and articles of association as read together with section 139(1) of the Companies Act.
8. The petition was canvassed by way of written submissions.
9. In her submissions, the petitioner relied on the provisions of Articles 2(1)&(2), 10, 20(4), 21(2), 22(1), 28, 43(1)(d), 46, 47(1), 73(2), 75(1)(c), 159, 165(b), 232, 258 and 259(1) of the Constitution. She also relied on sections 5, 77, 79, 84(1)&(2), 88(1) and 156(1) of the water Act and submitted that the mandate of the county government with regard to water resources is well established. Further reliance was placed on section 24 of the Interpretation and General Provisions Act, section 87 of the County Governments Act, section 139(1) of the Companies Act and Rule 2 of the Water (Services Regulatory) Rules 2012.
10. It was her argument that the interested party had previously served for 2 terms as director and he voluntarily resigned in February 2022. That according to the memorandum and articles of association of the 3^rd respondent, the interested party cannot serve for more than 2 terms. That the memorandum and articles of a company are the company’s constitution as they govern its management. For this argument, she relied on the cases of Okiya Omtatah Okoiti & 3 Others v. Nairobi City County & 5 Others (2014) eKLR, Wood v. Odessa Waterworks Co. (1889) 42 Ch D 636 and Benson Riitho Mureithi v. J.W. Wakhungu & 2 others (2014) eKLR.
11. The interested party submitted that the 3^rd respondent’s memorandum and articles of association dated 12^th February 2021 have no force of law by dint of section 24 of the Companies Act since the amendments were yet to be registered. That the amendments were registered after his appointment. He stated that the High Court in Murang’a through Constitutional Petition No. 2 of 2022 Peter Maina Karema v. Gatamathi Water & Sanitation Co. Ltd & WASREB, stayed the 4^th respondent’s Corporate Governance Guidelines of 2018 and the order is yet to be reviewed. That per the applicable memorandum and articles of association, the qualifications of a director were stated as follows:

“…Directors shall have a minimum post-secondary education and at least 5 years’ experience in professional or trade and fulfill the requirements of Chapter 6 of the constitution on integrity.”

1. He stated that according to this criterion, he is well qualified for the position of director and his appointment was above par. That even though he has already served as director before, he has never completed the full term of service, thus it cannot be counted as 2 full terms as contemplated under the memorandum and articles of association dated 10^th July 2015. He urged that the petitioner should prove the allegations that his appointment was done through political tokenism and he relied on section 107 of the Evidence Act. further reliance was placed on the cases of Christine Kalama v. Jane Wanja Njeru & Another (2021) eKLR, Nyaga v. Attorney General (On behalf of the Ministry of Environment, Water and Natural Resources) (2023) eKLR and Samson Gwer & 5 Others v. Kenya Medical Research Institute & 3 Others (2020) eKLR.
2. It was his argument that the issue in the petition is administrative in nature and it violates the principles of constitutional avoidance and the doctrine of exhaustion. To this end, he cited section 7 of the Fair Administrative Actions Act and relied on the cases of Communications Commission of Kenya & 5 Others v. Royal Media Services Ltd & 5 Others (2014) eKLR, Kinyua & 29 others v. Omae (Sued in his capacity as Presiding Bishop, Redeemed Gospel Church Incorporated) & 2 others; Munyi (interested party) (Miscellaneous Petition E001 of 2024) (2024) KEHC 3606 (KLR) and Anthony Miano & Others v. Attorney General & Others (2021) eKLR.
3. The issue for determination is whether the appointment of the interested party as a director in the 3^rd respondent violates the petitioner’s constitutional rights such that the orders sought should be granted.
4. In the pendency of the petition, the 1^st -3^rd respondents had moved the court through an application seeking to refer the dispute to arbitration in line with article 117 of the memorandum and articles of association. They however had a change of heart since the application had been overtaken by events.
5. Through the petition, the petitioner (petitioning on behalf of all the consumers of the 3^rd respondent’s services), contends that the interested party’s appointment as a director in the 3^rd respondent violates constitutional tenets. It is her argument that the interested party does not meet the requirements advertised yet he was nominated and appointed as director for a 3^rd term against the provisions of the revised memorandum and articles of association that were amended in February 2021. She stated that the actions of the 1^st, 2^nd and 3^rd respondents are ultravires and they offend the following provisions of the constitution, among others:
   1. Article 10 of the constitution on the rule of law, equity, social justice, inclusiveness, public participation, accountability, equality, transparency, human rights and non-discrimination.
   2. Article 20 on the promotion of rights and fundamental freedoms in the bill of rights. 
   3. Article 46 in the sense her rights as a consumer of the water services may be interfered with.
   4. Article 47 on Fair Administrative Action and that the petitioner has a right to written accountability for the actions of the 1^st, 2^nd and 3^rd respondents.
   5. Article 27(1) on the right to non-discrimination. That the actions of the 3^rd respondent in appointing the interested party without noting that he was underqualified for the position discriminates against the other 18 candidates who could have been qualified.
6. The interested party rebutted the petitioner’s arguments stating that he was well qualified for the position and he produced copied of his academic credentials. He also stated that the memorandum and articles of association relied upon by the petitioner were enforced after his appointment. He argued that the issues raised in the petition are administrative in nature and should not be determined within a constitutional petition.
7. The petitioner provided memorandum and articles of association dated 17^th March 2003. The Articles of association define the following thus:

“director” means a technically competent person in engineering, law, human resources, business, ICT, finance, organizational development appointed from the process of stakeholder participation under the corporate governance guidelines organized under the supervision of law organized by the water services board.

“Stakeholder participation procedure” is defined as open and competitive stakeholder based process by which the water services provider advertises for directors from the community served by the water service provider who have no conflict of interest with the company and such persons are then subjected to scrutiny and the most competent are appointed as board members to the water service companies and is elaborated in the corporate governance guidelines issued by water services regulatory board.

1. The procedure of appointment of a director is guided by the 3^rd respondent’s articles of association which subject the process to the WASREB Corporate Governance Guidelines 2018. The interested party has produced a copy of a court order in Peter Maina Karema v. Gatamathi Water & Sanitation Co. Ltd & WASREB Constitutional Petition No. 2 of 2022 through which the court rendered that the WASREB Corporate Governance Guidelines 2018 be stayed/suspended. I have taken the liberty of perusing the file and have learned that the matter is still active and ongoing and the order is yet to be reviewed.
2. It is my view that the appointment of a director in the 3^rd respondent is an internal affair purely guided by the company’s articles of association which subjects itself to the now suspended WASREB Corporate Governance Guidelines 2018. The process undertaken is intended to invite qualified members of the community the company serves and such persons undergo scrutiny to establish their competency for the position. The petitioner and the interested party stand on opposite sides regarding the memorandum and articles of association that should be referred to for purposes of this petition. I do not think this is a valid issue for consideration given the matter is arising within a constitutional Petition.
3. Looking at the issue at hand, the petitioner barely links the process of appointment of the director to violation of her rights (and those of the other consumers of the 3^rd respondent’s services) under the constitution. The question of the correctness of the procedure followed and qualification or otherwise of the interested party as a director in the 3^rd respondent, is not one to be determined within a constitutional petition. In fact, it is my view that the issue could have been conclusively determined through another civil procedure besides a constitutional petition, given that the Companies Act largely informs the effect of memorandum and articles of association and their amendment.
4. The doctrine of constitutional avoidance is important to enable the courts to determine matters touching on violation of rights under the constitution directly without stretching far into other subjects of civil law. It is expected the petitioner in a constitutional petition demonstrates that her rights are being violated by the 1^st, 2^nd and 3^rd respondents in appointing the interested party as a director in the 3^rd respondent. Any flaws in that procedure cannot be addressed through a constitutional petition per se. In the case of Sports and Recreation Commission v. Sagittarius Wrestling Club and Anor, 2001 (2) ZLR 501 (S), the South African Court held thus:

“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.”

(see also the cases of S v. Mhlungu, 1995 (3) SA 867 (CC), Communication Commission of Kenya & 5 Others v. Royal Media Services Ltd & 3 Others SCOK (2014) eKLR and KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR))

1. Even assuming that the petition herein raised valid constitutional issues, if any, the crux of the matter is that the interested party is already holding the office of director in the 3^rd respondent. In this replying affidavit, he annexed a copy of his letter of appointment dated 03^rd May 2023 being annexure JMM-5. This would mean that the matter is better placed before the Employment and Labour Relations Court (ELRC) established under Article 162(2)(a) of the Constitution considering the fact that the interested party is holding a letter of appointment. The ELRC, being a court of equal status with the high court, is well equipped with jurisdiction to entertain a constitutional petition stemming from the issue of appointment of the interested party and the regularity of the procedure adopted by the 3^rd respondent.
2. That being said, it is not possible for this court to grant the orders sought through the petition in the form taken. Therefore, I do find that the petition lacks merit and it is hereby struck out.
3. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.