JUSTUS AND JOSEPH KIOKO MUTISYA VS THE GOVERNOR,COUNTY GOVERNMENT OF MAKUENI AND THE COUNTY ASSEMBLY OF MAKUENI AND 1 Others

RULING

1. On 19/03/2024 the petitioners through their undated Petition sought prayers:
   1. A declaration that the process of recruiting the members of Wote Municipality Board with disregard of the one third gender rule is procedural, unconstitutional, null and void for being in violation of Articles 10 and 27 of the Constitution and compel the respondents to take appropriate administrative, regulatory, good governance and other necessary steps to ensure gender issues are adhered to as provided.
   2. A declaration that the board members whom have served a 5 year term are not eligible for re-appointment as provided for in urban areas and Cities Act of 2011 (amended 2019).
   3. A permanent injunction to restrain the 1^st respondent whether by themselves, their agents, servants, employees or any person acting for and on their behalf from appointing, swearing in of the nominees of the Wote Municipality board.
   4. An order of prohibition restraining the 1^st respondent from discrimination in appointment of Wote Municipality board members contrary to Article 27 of the Constitution 2010.
   5. Any other or further order or relief that this honorable court deems fit to grant.
   6. The costs of this petition be borne by the respondents.
2. The Petition was accompanied by a Notice of Motion also undated seeking a inter alia, a restraining order against the Respondents from appointing, gazetting or swearing in the duly vetted members of the Wote Municipality, that the court to join parties necessary for the fair determination of the Petition, and to issue further orders for the furtherance of justice.
3. The grounds were that the Petition would be rendered nugatory if the orders were not issued.
4. The Notice of Motion was supported by the affidavit of Justus Mutunga Mutuku who deposed;
5. That I am the applicant/petitioner herein aware of the matters issue and therefore, competent to swear this affidavit on my own behalf.

2) That I have perused the application herein and confirm that the facts stated therein are true and correct, and I swear this affidavit in good faith in support of the application herein.

3) That I have sworn a supporting affidavit in support of the petition and I hereby reiterate and repeat the averments in the said supporting affidavit and petition and I intend to, and I hereby seek the leave of the honourable court, to rely on the annexure to the said supporting affidavit in support of the application herein.

4) That the application and the petition are about the implementation of the 2010 Constitution of Kenya, and relate to the defence of the Constitution of Kenya 2010, including the enjoyment of fundamental rights and freedoms secured and guaranteed by the constitution.

5) That the facts stated establish a sufficient case with a high possibility of success in respect to this application and that further there is an overarching requirement of justice that the orders sought be granted.

6) That I have a right of access to the honourable court to safeguard the invaded rights and those of others, and to defend the Constitution of Kenya, 2010 which has been, is being and is in danger of further infringement.

7) That I verily believe, that in regard to the continuing violation of the Constitution, it is of utmost importance and urgency that the violations and threats to the Constitution be stopped by the court without delay.

8) That the honourable court has unfettered powers and the jurisdiction to stop the deliberate disregard for the rule of law.

9) That unless the application is urgently heard and determined, the respondents and the residents of Wote Municipality will suffer exclusivity in the very likely event that the violations of rights and fundamental freedoms enshrined in the constitution are not stopped.

10) That in view of the above, and pursuant to this court’s duty to promote and safeguard constitutionalism and the rule of law, I verily believe that it is now incumbent for this honourable court to determine the issued raised in this application/petition to ensure that both statutes and the Constitution are protected, and that the law will henceforth be applied with certainty.

11) That what is deponed to herein is true to the best of my knowledge save what has been deponed to on information and belief the sources and grounds whereof have been respectively specified.

1. Annexed to the affidavit was the petitioner’s memorandum to the Clerk Makueni County Assembly dated 21^st February 2024 and the response by the Clerk inviting the Petitioner to the meeting of the Committee on the 4^th March 2024
2. The Petition and the Motion were served upon the respondents as the court declined to grant ex-parte orders.
3. The Petitioners state in their Petition: That the petition is anchored to the provisions of the Urban Areas and Cities Act No. 13 of 2011 and the Amendment Act, of 2019; That Article 22(1) of the Constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed, or is threatened and that the intent of Articles 22 and 23 of the Constitution is that a persons or persons should have free and unhindered access to the court for the enforcement of their fundamental rights and freedoms.
4. Upon service of the Petition and the Motion upon the Respondents, they filed a Notice of Preliminary Objection.
5. The 1^st and 3^rd respondents raised a P.O dated 05/04/2024 and it is grounded as follows;
6. The gazettement of the newly appointed members of the Wote Municipality Board was done on 11^th March 2024 via a Kenya Gazette Notice No. 3058.
7. Pursuant to Kenya Gazette Notice No. 3058, the newly appointed members of the Wote Municipality Board were sworn into office on 25^th March 2024 thereby rendering the Petition null and void.
8. The Petition is not supported by any affidavit to support the allegations by way of facts.
9. The Petition is not particularized and is based on lies.
10. The P.O was canvassed through written submissions.

Submissions by the Respondents

1. It is noteworthy that the County Attorney has filed submissions on behalf of all the respondents but the Memorandum of Appearance is with respect to the 1^st and 3^rd respondents.
2. The respondents submitted that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of noting to stipulate which constitutional provisions have been infringed and how they have been infringed. That the petitioners have not precisely shown the provisions that have been infringed and how their rights have been violated. They relied on the case of Anarita  Karimi Njeru –vs- The Republic (1976-1980) where the court stated;

“We would however, again stress that if a person is seeking redress from the high court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”

1. They submitted that in the case of Mumo Matemu –vs- Trusted Society of Human Rights Alliance and 5 Others (2013) eKLR, the Court of Appeal maintained the essence of the Anarita Karimi case and also applied a contemporary look to its enduring legacy. That according to the Court of Appeal, the precision requirement is not to be mistaken for exactitude and is applied to ensure that upon proper definition of issues in a Constitutional petition, the court can apply its mind to the real issues at hand thereby saving on judicial resources.
2. Relying on Rule 11(1) & (2) of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules 2013, they submitted that the petitioners failed to include a supporting affidavit to the petition thus rendering it incomplete and defective. They urged the court to dismiss the petition with costs.

Submissions by the Petitioners

1. They submitted that the P.O is vague, expressed in ambiguous language, does not state the scope of the law and specify the intention to object. That the 2^nd respondent has not filed her P.O or notice to object to  the instant petition and as such, the matter stands un-challenged.
2. They submitted that the petition is supported by an affidavit which clearly indicates the grounds that the petition is premised on. That the respondents were duly served with all the documents and an affidavit of service filed.
3. They submitted that there was a violation of the rule of law and principle of legality which requires the respondents to swear an affidavit to support both the ‘Notice to Oppose’ and Preliminary Objection’. They contended that both documents cannot be verified as they lack the legal compass.
4. They submitted that the 1^st respondent has, without any proper justification unlawfully appointed Mr. Romeo Ndeveni to the position of Wote Municipality board member on a 5-year non-renewable contract. They contended that Mr. Romeo was aware that he is already in the gainful employment of the County Government of Makueni and that he served the previous Wote Municipality as a board member. They submitted that the dual appointments of Mr. Romeo have placed him in two separate positions where he is earning two salaries and several allowances contrary to Article 77(1) of the Constitution. They contended that Mr. Romeo has failed the integrity test and is therefore unfit to hold public office.
5. They submitted that the assertion by the respondents’ counsel that the Wote Municipality Board is properly constituted by smuggling the name of Everlyn Mulewa Kimuli cannot be backed by any known law. That she is an employee of the county government employed on permanent and pensionable terms and only serves as the Wote Municipality Manager. They submitted that Everlyn Mulewa Kimuli has no vote in the board as she serves as an ex-officio member hence the gender factor cannot be solved.
6. They submitted that the name of Everlyn Mulewa Kimuli cannot be traced anywhere in the list of seven people whose names were vetted by the county assembly, gazetted and sworn in.
7. They submitted that the 1^st respondent has failed to disclose the composition of the board hence inflicting injury to the provisions of Article 54 and 55 of the Constitution. That Article 10 of the Constitution binds all state organs, state officers, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or  interpret any law, make or implement any public policy decision to national values and principles of governance.

Analysis & Determination

1. Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 is the locus classicus on what amounts to a P.O. The Court of Appeal stated that;

“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit….

A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”

1. It is therefore well settled that a P.O must not be blurred with factual details needing to be established through the process of evidence.
2. In this matter, the grounds of the P.O are that the petition has been overtaken by events as the acts complained of have already happened, secondly, that the petition has no supporting affidavit and thirdly, that the petition is not particularized.
3. As to whether the petition has been overtaken by events, the respondents other than giving the Kenya gazette notice number 3058 of 11^th March 2024 , did not exhibit the relevant gazette notice to confirm that appointments to the Wote Municipality Board have been effected. Subject to that evidence being availed to court it would be safe to presume that that gazettement had not taken place.
4. Prayer 2 seeks a declaration that members who have previously served in the Board are not eligible for re-appointment. This is a live issue but the question is whether the Constitutional Court is the proper forum to litigate it. The petitioners are clear that this prayer is anchored on the provisions of the Urban areas and Cities Act, Cap 275 Laws of Kenya hence  effectively removing it from the ambit of the Bill of Rights, and the remedy may lay elsewhere. In Benard Muage –vs- Fine Serve Africa Limited & 3 Others [2015] eKLR the Court stated;

“Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”

1. Evidently, the outcome of the Petition may ultimately have a bearing on this issue. However, I would be hesitant to say much about it at this stage.
2. Prayer 4 seeks an order of prohibition restraining the Governor of Makueni County from discrimination in appointment of the board members. Now that the board has already been constituted, the live issue is whether its composition has complied with the two-thirds gender rule as provided for in Article 27 (8) of the Constitution, and whether it complies with the requirements for nondiscrimination in any form. Evidently it is particularized as it cites the provision of the Constitution and demonstrates the violation. For instance, the Petitioners state:

That the process of constituting Wote Municipality board undermines the provisions of Article 27(1) which guarantees that every person has the right to equal protection and equal benefit of the law; That Article 27(4) which guarantee that the state shall not discriminate directly against any person on any ground including gender, social status or any creed; That the method of shortlisting is prejudicial to the rights of the women who are not adequately represented in the composition of the Municipality board and hence violates the law by a way of falling short of the provision of a third gender parity and any attempts to implement it would be imposing an illegality; That the impugned process of deemed to put a new Wote Municipality board is unfair, discriminatory, flawed, and excessive and as such it excludes some Municipality private sectors , youth and the women will have had their fundamental rights and freedoms infringed from participating on Wote Municipality matters.

1. From the foregoing it is possible to glean the gist of the Petition. That there has been a violation of the fundamental rights and freedoms of the women, youth and business persons because they have been denied the right to participate in the ended recruitment of members of the Board because of the discriminatory practices of the respondents.
2. On the other two grounds in the P.O to wit, lack of a supporting affidavit and failure to particularize the petition, I note that the only supporting affidavit on record was filed on 19/03/2024 and is with respect to a Notice of Motion application which it is alleged has already been overtaken by events as it sought an injunction against the appointment of the board members. Paragraph 3 of the said affidavit states that; “That I have sworn a supporting affidavit in support of the petition and I hereby reiterate and repeat the averments in the said supporting affidavit and petition and I intend to, and I hereby seek the leave of the honorable court to rely on the annexture to the said supporting affidavit in support of the application herein.” The plain meaning of this deposition is that the petitioners intended to rely on the contents of the supporting affidavit to the Petition, in their application.
3. Rule 11 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules 2013 (Mutunga Rules) provides that;

‘(1) The petition filed under these rules may be supported by an affidavit, (2) If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit.

1. Clearly, the language used in the rules is permissive and acknowledges that a supporting affidavit can be omitted.
2. As to whether the petition has not been particularized, the requirement in constitutional litigation is that constitutional violations must be pleaded with reasonable degree of precision. This means that the articles of the Constitution which confer specific rights should be enumerated and the manner of their infringement should be demonstrated. With specific focus on prayer 4, paragraph 12 of the petition pleads that; ‘the method of short listing is prejudicial to the rights of women who are not adequately represented in the composition of the Municipality board and hence violates the law by way of falling short of the provision of a third gender parity and any attempts to implement it would be imposing an illegality.’
3. Further, Paragraph 19 pleads that; ‘the petition expressly opines that Article 27 (6) requires affirmative action by all State Organs (including the respondents) to ensure that there is substantive equity between the genders as part of the mandatory obligations under Article 21(1) of the Constitution to observe, respect, protect, promote and fulfill all the rights and fundamental rights in the Bill of Rights including Article 27 of the Constitution.’
4. From the foregoing it is evident that the petitioners have met the bare threshold of a Constitutional Petition. They have set out the provisions of the constitution and the manner of its alleged violation.
5. With respect to the Affidavit it is evident that the Mutunga Rules show that the swearing of an affidavit is preceded by the word may. That allows a petitioner the latitude to file or not to file that affidavit.
6. Back to the substance of the P.O.  The issues raised  could not have resolved the whole Petition.
7. In the circumstances I find that the P.O is unsustainable and the same is dismissed with costs.

Dated, signed delivered in open court on 29^th May 2024

Mumbua T Matheka

Judge

NB: paragraphing distorted by the system.