REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 122 OF 2020
OKIYA OMTATAH OKOITI………………………………………PETITIONER
VERSUS
THE PRIVATE SECURITY
REGULATORY AUTHORITY…………………………………1 ST RESPONDENT
THE BOARD, PRIVATE SECURITY REGULATORY AUTHORITY………………………………………………….2 ND RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INTERIOR AND COORDINATION OF NATIONAL GOVERNMENT………..3 RD RESPONDENT
THE HON. ATTORNEY GENERAL………………………….4 TH RESPONDENT
YUSUF MAHAMED FAZUL………………………………….5 TH RESPONDENT
PROF. STEPHEN P. NG’ANG’A……………………………6 TH RESPONDENT
AND
SECURITY TRAINERS ASSOCIATION OF KENYA…..1 ST INTERESTED PARTY
KENYA SECURITY INDUSTRY ASSOCIATION……..2 ND INTERESTED PARTY
KENYA ASSOCIATION OF
SECURITY PROFESSIONALS…………………………3 RD INTERESTED PARTY
KENYA NATIONAL SECURITY
WORKERS UNION……………………………………4 TH INTERESTED PARTY
JUDGMENT
Background
On 5 th July 2019, the 3 rd respondent (the Cabinet Secretary) gazetted the Private Security (General) Regulations, 2019 (the Regulations) made pursuant to the Private Security Regulation Act No. 13 of 2016 (the Act) and the regulations took effect on the same day (5 th July 2019). On 11 th October 2019, the Protective and Safety Association of Kenya (Protective and Safety Association) petitioned the National Assembly to have the regulations annulled.
On 6 th November 2019, the National Assembly Committee on Delegated Legislation (the committee) tabled its report on the regulations recommending that the regulations be annulled for lack of adequate public participation; unjustifiable delay in the publication of the regulations or laying them before the National Assembly.
The National Assembly concluded debate on the motion for adoption of the report of the committee on 14 th November 2019 and adopted the report on 19 th November 2019. Pursuant to section 18 of the Statutory Instruments Act and Standing Order 210 (4) (b) the regulations stood annulled. Notwithstanding the adoption of the report annulling the regulations, the Cabinet Secretary appointed members of the board of the 1 st respondent (the Authority) while on 9 th December 2019, the 3 rd respondent issued a press statement directing compliance with the regulations.
Petitioner’s case
The petitioner filed this petition challenging appointment of members of the board of the Authority; the directive by the Cabinet Secretary and the Authority and the actions taken in furtherance of the directive where by a criterion was issued for the vetting of private security companies. Private security companies were also required to furnish the Authority with bank statements, personal data of staff and salary scales.
The petitioner argued that the Cabinet Secretary and the Authority proceeded to implement the annulled regulations by appointing independent stakeholder members to the board; conducting inspection of security firms across the country for compliance with the regulations and implementing Private Security Regulatory Authority Training Curriculum based on annulled regulations.
The petitioner also argued that Barry Stephen Patrick did not merit for appointment to the board because he was not a citizen of Kenyan; that Isaac G.M. Andabwa and Josh Soita appointed to represent registered employee organizations were from one union and Jackson W. Mbuthia and Andrew Solomon appointed to represent registered associations representing private security firms were also from one association.
The petitioner asserted that the training curriculum was void as it was executing non-existent regulations. It was also enacted within 14 days without public participation and validation and was not subjected to any piloting before being launched.
The petitioner further stated that Yusuf Mahamed Fazul (Fazul) is incompetent to hold office following the findings by the Office of the Ombudsman in its report of November 2016 on investigations into alleged abuse of power and official misconduct by the Executive Director, NGO Coordination Board. Fazul was not eligible for appointment as the CEO and did not meet the requirements under Chapter 6 of the Constitution. The recruitment process through which he was appointed was also tainted with conflict of interest hence his appointment should be nullified.
It was the petitioner’s further case, that Prof Stephen P. Ng’ang’a continued to serve as the chairperson of the authority contrary to the judicial pronouncement in Judicial Review No. 37 of 2017, Republic v Private Security Regulatory Authority & 2 others Ex Parte Charles Arori (Chief Shopsteward) G4s & 9 others; Stephen P Nganga (Interested Party) [2019] eKLR. The petitioner argued that the respondents’ actions violated the Constitution, the Public Service (Values and Principles) Act No. 1A of 2015 and the Fair Administrative Action Act.
The petitioner maintained that vetting of private security companies was conducted pursuant to void regulations; there was no mechanism in the Act for vetting to comply with and the dispute resolution mechanism in section 43 of the Act was not appropriate to address grievances in the petition. The petitioner asserted that the appointments were invalid because they were made under annulled regulations. According to the petitioner, the Cabinet Secretary gazetted the regulations on 5 th July 2019, but they became void before the midnight on 6 th August 2020 for failing to comply with sections 11(1), (2) and (3) of the Statutory Instruments Act.
The petitioner argued that contrary to section 11(2) (b) of the Act which required representation on the board by both large and small associations (one representing large organizations and the other small and medium ones), all board members were from a consortium of four big multinational companies.
The petitioner refuted the claim that Kenya National Private Security Workers Union was the only registered union representing security guards. The petitioner’s position was that there are other associations of employees in the private security industry, including the Kenya Union of Commercial Food & Allied workers, Women in Security Kenya, Protective and Safety Association of Kenya and national association of Retired Police Officer Kenya.
The petitioner maintained that there is no limitation of time for filing constitutional petitions and that the Chair of the Authority (Prof. Stephen Ng’ang’a) did not have the required 15 years’ experience in security matters as required by section 11(3)(c) of the Act. According to the petitioner, there was no evidence of the 1 st respondent’s accreditation and licensing as trainers as required by section 9(j) of the Act. It was also not possible to formulate the curriculum in the absence of subsidiary legislation operationalizing section 9 of the Act.
The petitioner went on to assert that the decision in JR No. 37 of 2017 (supra) is applicable because the judgment was made in rem, and that these are not contempt of court proceedings which must be filed within the case where the order was made. The petitioner relied on Anthony Otiende Otiende v Public Service Commission & 2 others [2016] eKLR and George Ndemo Sagini v Attorney General & 3 others [2017] eKLR to support the position that the regulations become void by an act of law and annulment by the National Assembly.
The petitioner argued that the regulations having been voided, it followed that at the time the board was constituted, any function or duty it carried out pursuant to the regulations was void. Reliance was placed on Bedford Quarries v Bough, (1907) 168 Ind. 671, 80 N.E. 539, 14L.R.A. 418; Carr v State (1890) 127 Ind. 204, 26 N.E. 778; L.R.A. 370 and Chicago, Indianmpolia & Louisville Ry. v. Hackett, (1912) 227 U.S. 559, S, Ct., 57 L. Ed.966, among others decisions. In that regard, the petitioner argued, inspecting and vetting security firms under void regulations, including appointments made, violated articles 4(2), 10(2) and 47(1) of the Constitution.
On lack of public participation, the petitioner relied on articles 1(2), 4(2) and 10(2) (a) of the Constitution and decisions in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR; Doctors for Life International v The Speaker of the National Assembly (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006) ; Minister of Health and Others v Treatment Action Campaign and Others [2002] 5 LRC 216, 248; Minister of Health & Another v New Clicks South Africa (Pty) Ltd and Others [2006] (2) SA 311 (CC) and Republic v Private Security Regulatory Authority & 2 others Ex parte Charles Arori (Chief Shopsteward) G4s & 9 others; Stephen P. Ng’ang’a (interested Party) eKLR, among others.
The petitioner maintained that Prof. Ng’ang’a and Fazul being in office violates the principles in articles 10, 73 and 232 of the Constitution and section 5 of the Public Service (Values and Principles) No. 1A of 2015.
based on the above averments, the petitioner sought the following relief:
A declaration that having been voided by the National Assembly the Private Security (General) Regulations, 2019 are invalid, null and void ab initio and anything based on them is equally invalid, null and void.
A declaration that the authority’s decision to visit offices of private security companies to inspect and vet them during the nationwide lockdown to contain the COVID-19 pandemic is irresponsible, unreasonable, and unlawful and, therefore, invalid, null and void.
An order:
Quashing the ongoing process of inspecting and vetting security firms until the Cabinet Secretary enacts Regulations under the Private Security Regulations Act (No. 13 of 2016) to guide the process.
Quashing the Private Security Regulatory Authority’s email containing further criteria for the vetting of private security companies.
Quashing the Private Security Regulatory Authority Training Curriculum.
Quashing Gazette Notice No. 10237 of the 28 th October, 2019 appointing the independent stakeholder members of the Board of the Private Security Regulatory Authority.
Quashing the appointment of Yusuf Mahamed Fazul as the CEO/ Director of the Private Security Regulatory Authority.
Compelling the Cabinet Secretary, Ministry of Interior and Coordination of National Government to enact Regulations under the Private Security Regulations Act (No. 13 of 2016) strictly in compliance with law, including by providing for effective public participation.
Compelling the Cabinet Secretary, Ministry of Interior and Coordination of National Government to degazette the appointment vide Gazette No. 6868 of 21 st July 2017 of Prof. Stephen P. Ng’ang’a as the Chairman of the Private Security Regulatory Authority.
Compelling the respondents to pay the costs of this suit.
Any other relief the court may deem just to grant.
1 sst 2 nd, 5 th and 6 th respondents’ case
The 1 st , 2 nd , 5 th and 6 th respondents opposed the petition through a replying affidavit sworn by Fazul. The respondents stated through the replying affidavit that vetting of private security companies was conducted pursuant to the provisions of the Act; the 1 st and 2 nd respondents’ decision was in compliance with the Constitution and the Act and the complaints about vetting are premature for failing to comply with section 43 of the Act. Section 43 is on appeals against decisions of the Authority to the Cabinet Secretary.
The respondents took the position that pursuant to the Public Order (State Curfew) Order, 2020, licensed security firms were listed among persons exempt from the application of the curfew regulations. For that reason, in undertaking their mandate, the 1 st and 2 nd respondents were obligated to ensure that only licensed security firms were within the exemption.
The 1 st , 2 nd, 5 th and 6 th respondents argued that the vetting conducted did not include any physical contact; was done with full appreciation of the Ministry of Health guidelines and in conjunction with other national security institutions, including Kenya Revenue Authority and National Police Service.
Regarding the development of a training curriculum, they argued that as a statutory function of the 1 st respondent, it was carried out pursuant to sections 9(i), (j) and (k) of the Act and not the Regulations. 9(i) provides for encourage and promote efficiency and responsibility in the rendering private security services; (j) set standards and accredit institutions offering training of security service providers and prospective security service providers to ensure a high-quality training and (k) set standards to encourage equal opportunity employment practices in the private security services industry. They further argued that the curriculum was developed following broad consultations with over 200 security companies and representatives of industry players thus, it was lawful and valid.
The 1 st , 2 nd 5 th and 6 th respondents maintained that the petitioner did not adduce evidence to rebut the regularity presumption. They relied on Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR and Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR.
The 1 st , 2 nd , 5 th and 6 th respondents again relied on the decision in Independent Electoral and Boundaries Commission & 4 others v David Ndii & 82 others; Kenya Human Rights Commission & 4 others (Amicus Curiae) [2021] eKLR, to submit that vetting, registration and licensing was conducted in accordance with national values and principles of governance in article 10 (2) of Constitution. The petitioner did not adduce evidence to show violation of article 47of the Constitution.
Regarding the appointment of board members, these respondents asserted that the appointment was the result of broad consultations with relevant stakeholders, including Kenya Private Security Workers Union; Kenya Security Industry Association and Kenya Alliance of Residents Associations. Stakeholders complied with their internal procedures before submitting names of nominees after which the 3 rd respondent appointed members of the board on 31 st October 2019 in accordance with section 11(2) of the Act before the regulations were annulled on 19 th November 2019.
The 1 st , 2 nd , 5 th and 6 th respondents maintained that Jackson was nominated by Kenya Association of Security Professionals while Andrew was nominated by Kenya Security Industry Association. Joash Soita and Isaac Andabwa were nominated by the only registered Private Security Workers Union representing both large-scale and small-scale employees. The nomination of Eng. Bernard Muriuki to represent the resident associations was consultative, open, transparent and competitive while the appointment of Barry Steven was not prohibited since he is a representative of the Kenya Private Sector Alliance which comprises both citizens and non-citizens. He was thus, nominated by Kenya Private Sector Alliance to the board.
The 1 st , 2 nd 5 th and 6 th respondents took the position, that Fazul’s recruitment was competitive and complied with the Act, which stipulates the procedure for appointment and removal of the CEO which the petitioner ought to pursue. They maintained that the challenge to the appointment of the chairperson is an abuse of the court process as it should have been brought up in Judicial Review No. 37 of 2017 (supra).
The 1 st , 2 nd , 5 th and 6 th respondents relied on several decisions, including Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex parte Alfred Kiptoo Keter & 3 others [2018] eKLR; Leonard Otieno v Airtel Kenya Limited [2018] eKLR; Raila Odinga v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 6 (KLR) and John Harun Mwau v Attorney General (2015) eKLR.
3 rd and 4 th respondents’ response
The 3 rd and 4 th respondents opposed the petition through a replying affidavit sworn by Dr. (Eng.) Karanja Kibicho, CBS, Principal Secretary, Ministry of Interior and written submissions. The 3 rd and 4 th respondents argued that prior to the appointments, the 3 rd respondent made general regulations to provide for the procedure for appointing representatives under section 11 (1) (b)(vi) and (vii), among other requirements. The regulations were widely circulated for public participation after which they were gazetted and became part of the subsidiary legislation. They were, however nullified on 19 th November 2019 for, among other reasons, lack of public participation.
Regarding the appointments, the 3 rd and 4 th respondents urged that they were transparent and complied with the Constitution, the Act and the regulations before they were annulled. The Authority carried out broad consultations with relevant stakeholders, including Kenya Private Security Workers Union, Kenya Security Industry Association and Kenya Alliance of Residents Associations.
The 3 rd and 4 th respondents maintained that relevant stakeholders conducted elections and submitted names of their nominees to the Cabinet Secretary for appointment after adequate consultation among major stakeholders in compliance with their internal procedures for nominating representatives to the board.
The 3 rd and 4 th respondent asserted that Barry Stephen Patrick represents Kenya Private Sector Alliance which comprises both Kenyans and non-Kenyans thus, his appointment was proper in law. Jackson Mbuthia and Andrew Solomon are not from one association while Josh Soita and Isaac Andabwa were nominated by the only registered Private Security Workers Union representing both large scale and small-scale employees. They were appointed them to the board on 31 st October 2019 pursuant to section 11 (1) and (2) of the Act and the regulations which were still in force at the time.
The 3 rd and 4 th respondents maintained that the petitioner is guilty of delay and did not come to court with unclean hands. The petition was filed five months after the regulations had been annulled on 19 th November 2019 and nine months after the regulations had been gazetted by the Cabinet Secretary. The petitioner did not also demonstrate how the appointments violated articles 27 and 232 of the Constitution.
The 3 rd and 4 th respondents maintained that Fazul’s appointment as CEO was done in compliance with the Constitution and the Act. The Gazette Notice dated 28 th October 2019 appointing the nominees was done in compliance with the Constitution, the Act and the regulations before they were annulled. In their view, annulling of the regulations did not affect actions taken prior to the annulment. They relied on section 11(4) of the Statutory Instruments Act and the decision in George Ndemo Sagini v Attorney General & 3 others [2017] eKLR.
The 3 rd and 4 th respondents posited that the petitioner should have filed an application for contempt in Judicial Review No. 37 of 2017 (supra). They relied on Samuel Kahiu v Jecinta Akinyi Soso Assistant County Commissioner Iloodokilani Ward/Division & another [2018] eKLR to support this position.
1 st Interested party’s response
The 1 st interested party filed a replying affidavit sworn by George Odhiambo in opposition to the petition. The 1 st interested party took the position that the curriculum was developed and published by the 2 nd respondent in line with its functions under section 9 of the Act. The curriculum was based on the Act and was published 4 months before the regulations were annulled.
The 1 st interested party contended that the objectives of the curriculum are in line with the objects of sections 3 and 9 of the Act which have not been questioned. In that regard, it was argued, annulling the regulations did not interfere with the implementation of the Act or performance of the functions of the 1 st and 2 nd respondents.
According to the 1 st interested party, the Act gave the 1 st and 2 nd respondents discretion to come up with ideas, actions and plans that give effect to the objects of the Act. The development of the curriculum was just one of the strategies. It was not an ultra vires decision since it was to promote the development of the private security service industry as required by section 9(e), (g) and (j) of the Act.
The development of the curriculum was not rushed as alleged; there was sufficient public participation during the 4 days consultative meeting (from 12 th March 2019 to 15 th March 2019); the meeting was convened by various private security providers attended by more than 20 firms and the 1 st respondent at Kenya School of Government. Views given on the curriculum were discussed at length.
The 1 st and 3 rd interested parties did not file submissions.
The 2 nd and 4 th interested parties informed the court that they had filed responses but there are responses in the CTS. They did not also file written submissions.
4 th interested party’s submissions
The 4 th interested party submitted that the appointment of board members was done in accordance with the Act and regulations then in force. Reliance was placed on the decision in Republic v Registrar of Companies & 2 others; Ex Parte Schindler Limited [2020] eKLR that the prayers in the petition are contrary to the rules of interpretation.
The 4 th interested party argued that there was no violation of the Constitution; the petitioner failed to appreciate the history of the private security sector and the previous conduct and injustice suffered where unions were directly affected and or addressed the rights of the private security sector.
The 4 th interested party relied on the decisions in Nairobi Metropolitan PSV Sacco Union Limited & 25 others v County of Nairobi Government & 3 others [2013] eKLR and Minister of Health and Another vs New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC 14, that the petitioner did not outline violations on public participation.
Regarding the appointments of Isaac Andabwa and Josh Soita, the 4 th interested party contended that the appointments were made on the basis that the 4 th interested party union was registered and its sole purpose was to represent all private security personnel in the matter of the Private Security Workers in Kenya. Elections were conducted and the preferred candidates were appointed in accordance with internal procedures of the board.
The 4 th interested party took the position, that the petitioner failed to take steps to ensure compliance with the recommendation by the National Assembly in relation to the Report of the Committee. Reliance was placed on Justus Kariuki Mate & another v Martin Nyaga Wambora & another (2017) eKLR.
Determination
Upon considering the pleadings and arguments by parties, I have distilled the following issues for determination, namely; whether the appointments were done in compliance with the Constitution and the Act and whether the development of the curriculum was lawful.
Appointments
The petitioner argued that the committee’s report was adopted on 19 th November 2019 and pursuant to section 18 of the Statutory Instruments Act and Standing Order 210 (4) (b), the regulations stood annulled. Despite the adoption of the report annulling the regulations, the 3 rd respondent appointed members of the board which was unlawful.
The petitioner queried the appointment of Barry Stephen Patrick on grounds that he is not a Kenyan citizen; Isaac G.M. Andabwa and Joash Soita who were appointed to represent registered employee organizations because they were from one union and Jackson W. Mbuthia and Andrew Solomon appointed to represent registered associations representing private security firms because they were also from one association. The respondents maintained that the appointments were made while the regulations were still in force and were thus, lawful.
Section 11 (1) of the Act the states that the board of the Authority is to comprise; (a) a Chairperson appointed by the President;(b) principal secretaries responsible for internal security, finance and labour; a representative of National Police service; a representative of National Intelligence Service; two members of registered associations representing employees organisations elected in accordance with regulations prescribed by the Cabinet Secretary; two members of registered organisations representing private security firms elected in accordance with regulations prescribed by the Cabinet Secretary; one member nominated by registered resident associations to represent interests of residents and one member nominated by the Kenya Private Sector Alliance.
According to section 11(1), registered associations representing employees’ organisations elect two members; registered organisations representing private security firms elect two members; registered resident associations nominate one member to represent interests of residents and one member is nominated by the Kenya Private Sector Alliance. The two members from registered associations representing employees’ organisations and the two from registered organisations representing private security firms have to be elected in accordance with regulations prescribed by the Cabinet Secretary. That means there must be regulations in force to guide how those members are elected. The other members of the board are identified by virtue of the organisations they represent or offices they hold.
The petitioner argued that the regulations having been annulled there were no regulations for purposes of undertaking the appointment exercise. The petitioner further argued that some of the people appointed were not suitable to hold office.
Both sides agree that the regulations were annulled on 19 th November 2019. The petitioner argued that since the regulations were annulled, the appointments were void ab intion. The respondents maintained that the appointments were made before the annulment thus, they were lawful.
The regulations were gazetted on 5 th July 2019 and took effect on the same day. However, on 11 th October 2019 the National Assembly was petitioned to annul the regulations for lack of sufficient public participation and late tabling. The committee on delegated legislation considered the petition and tabled its report on 6 th November 2019 recommending that the regulations be annulled for lack of adequate public participation; unjustifiable delay in their publication or laying before the National Assembly. The National Assembly adopted the report to annul the regulations on 19 th November 2019. According to the petitioner, the regulations stood annulled pursuant to section 18 of the Statutory Instruments Act and Standing Order 210 (4) (b).
Section 18 of the Statutory Instruments Act on annulment of a statutory instrument, provides as follows:
When a report on a statutory instrument has been tabled in Parliament, the statutory instrument shall be deemed to be annulled if Parliament passes a resolution to that effect.”
It was on the basis of the above provision that the petitioner argued that the National Assembly having adopted the report to annul the regulations on 19 th November 2019, the regulations stood annulled and there were no regulations in force for purposes of enforcing the Act. The respondents took the view, that appointments were made before the regulations were annulled.
Further, that the appointments were transparent and complied with the Constitution; the Act and the regulations before they were annulled. The Authority carried out broad consultations with relevant stakeholders, including Kenya Private Security Workers Union, Kenya Security Industry Association and Kenya Alliance of Residents Associations. Relevant stakeholders conducted elections in compliance with their internal procedures for nominating representatives and submitted names of their nominees to the Cabinet Secretary for appointment.
Section 11 (1) of the Statutory Instruments Act requires every Cabinet Secretary responsible for a regulation-making authority to ensure that within seven sitting days after publication of a statutory instrument, a copy of the instrument is transmitted to the responsible clerk for tabling before the relevant House of Parliament.
Subsection (2) states that notwithstanding subsection (1) and pursuant to legislative powers conferred on the National Assembly under article 109, all regulation making authorities have to submit copies of all statutory instruments for tabling before the National Assembly. Under subsection (3), the responsible clerk has to register or cause to be registered every statutory instrument submitted to the respective House(s) for tabling or laying.
Subsection (4) is material, that if a copy of a statutory instrument that supposed to be laid before the relevant House of Parliament is not so laid as required, the statutory instrument “shall cease to have effect immediately after the last day for it to be so laid without prejudice to any act done under the statutory instrument before it became void.”
The regulations were gazette on 5 th July 2019 and took effect the same day. Although the petitioners attempted to argued that that the regulations became void for not being laid before Parliament as required by section 11(4). The petitioner states in his affidavit that the regulations were nullified on 19 th November 2019. If the regulations had become void before the National Assembly adopted the report on 19 th November 2019, there would have been no point for consideration of the petition by the committee and the debate and adoption of the report by the National Assembly. The regulations were annulled by the National Assembly following the adoption of the committee’s report to that effect on 19 th November 2019.
There is no dispute that action had already been taken pursuant to the regulations prior to annulment. In that regard, as subsection (4) states, where the statutory instrum
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 122 OF 2020
OKIYA OMTATAH OKOITI………………………………………PETITIONER
VERSUS
THE PRIVATE SECURITY
REGULATORY AUTHORITY…………………………………1 ST RESPONDENT
THE BOARD, PRIVATE SECURITY REGULATORY AUTHORITY………………………………………………….2 ND RESPONDENT
THE CABINET SECRETARY, MINISTRY OF INTERIOR AND COORDINATION OF NATIONAL GOVERNMENT………..3 RD RESPONDENT
THE HON. ATTORNEY GENERAL………………………….4 TH RESPONDENT
YUSUF MAHAMED FAZUL………………………………….5 TH RESPONDENT
PROF. STEPHEN P. NG’ANG’A……………………………6 TH RESPONDENT
AND
SECURITY TRAINERS ASSOCIATION OF KENYA…..1 ST INTERESTED PARTY
KENYA SECURITY INDUSTRY ASSOCIATION……..2 ND INTERESTED PARTY
KENYA ASSOCIATION OF
SECURITY PROFESSIONALS…………………………3 RD INTERESTED PARTY
KENYA NATIONAL SECURITY
WORKERS UNION……………………………………4 TH INTERESTED PARTY
JUDGMENT
Background
On 5 th July 2019, the 3 rd respondent (the Cabinet Secretary) gazetted the Private Security (General) Regulations, 2019 (the Regulations) made pursuant to the Private Security Regulation Act No. 13 of 2016 (the Act) and the regulations took effect on the same day (5 th July 2019). On 11 th October 2019, the Protective and Safety Association of Kenya (Protective and Safety Association) petitioned the National Assembly to have the regulations annulled.
On 6 th November 2019, the National Assembly Committee on Delegated Legislation (the committee) tabled its report on the regulations recommending that the regulations be annulled for lack of adequate public participation; unjustifiable delay in the publication of the regulations or laying them before the National Assembly.
The National Assembly concluded debate on the motion for adoption of the report of the committee on 14 th November 2019 and adopted the report on 19 th November 2019. Pursuant to section 18 of the Statutory Instruments Act and Standing Order 210 (4) (b) the regulations stood annulled. Notwithstanding the adoption of the report annulling the regulations, the Cabinet Secretary appointed members of the board of the 1 st respondent (the Authority) while on 9 th December 2019, the 3 rd respondent issued a press statement directing compliance with the regulations.
Petitioner’s case
The petitioner filed this petition challenging appointment of members of the board of the Authority; the directive by the Cabinet Secretary and the Authority and the actions taken in furtherance of the directive where by a criterion was issued for the vetting of private security companies. Private security companies were also required to furnish the Authority with bank statements, personal data of staff and salary scales.
The petitioner argued that the Cabinet Secretary and the Authority proceeded to implement the annulled regulations by appointing independent stakeholder members to the board; conducting inspection of security firms across the country for compliance with the regulations and implementing Private Security Regulatory Authority Training Curriculum based on annulled regulations.
The petitioner also argued that Barry Stephen Patrick did not merit for appointment to the board because he was not a citizen of Kenyan; that Isaac G.M. Andabwa and Josh Soita appointed to represent registered employee organizations were from one union and Jackson W. Mbuthia and Andrew Solomon appointed to represent registered associations representing private security firms were also from one association.
The petitioner asserted that the training curriculum was void as it was executing non-existent regulations. It was also enacted within 14 days without public participation and validation and was not subjected to any piloting before being launched.
The petitioner further stated that Yusuf Mahamed Fazul (Fazul) is incompetent to hold office following the findings by the Office of the Ombudsman in its report of November 2016 on investigations into alleged abuse of power and official misconduct by the Executive Director, NGO Coordination Board. Fazul was not eligible for appointment as the CEO and did not meet the requirements under Chapter 6 of the Constitution. The recruitment process through which he was appointed was also tainted with conflict of interest hence his appointment should be nullified.
It was the petitioner’s further case, that Prof Stephen P. Ng’ang’a continued to serve as the chairperson of the authority contrary to the judicial pronouncement in Judicial Review No. 37 of 2017, Republic v Private Security Regulatory Authority & 2 others Ex Parte Charles Arori (Chief Shopsteward) G4s & 9 others; Stephen P Nganga (Interested Party) [2019] eKLR. The petitioner argued that the respondents’ actions violated the Constitution, the Public Service (Values and Principles) Act No. 1A of 2015 and the Fair Administrative Action Act.
The petitioner maintained that vetting of private security companies was conducted pursuant to void regulations; there was no mechanism in the Act for vetting to comply with and the dispute resolution mechanism in section 43 of the Act was not appropriate to address grievances in the petition. The petitioner asserted that the appointments were invalid because they were made under annulled regulations. According to the petitioner, the Cabinet Secretary gazetted the regulations on 5 th July 2019, but they became void before the midnight on 6 th August 2020 for failing to comply with sections 11(1), (2) and (3) of the Statutory Instruments Act.
The petitioner argued that contrary to section 11(2) (b) of the Act which required representation on the board by both large and small associations (one representing large organizations and the other small and medium ones), all board members were from a consortium of four big multinational companies.
The petitioner refuted the claim that Kenya National Private Security Workers Union was the only registered union representing security guards. The petitioner’s position was that there are other associations of employees in the private security industry, including the Kenya Union of Commercial Food & Allied workers, Women in Security Kenya, Protective and Safety Association of Kenya and national association of Retired Police Officer Kenya.
The petitioner maintained that there is no limitation of time for filing constitutional petitions and that the Chair of the Authority (Prof. Stephen Ng’ang’a) did not have the required 15 years’ experience in security matters as required by section 11(3)(c) of the Act. According to the petitioner, there was no evidence of the 1 st respondent’s accreditation and licensing as trainers as required by section 9(j) of the Act. It was also not possible to formulate the curriculum in the absence of subsidiary legislation operationalizing section 9 of the Act.
The petitioner went on to assert that the decision in JR No. 37 of 2017 (supra) is applicable because the judgment was made in rem, and that these are not contempt of court proceedings which must be filed within the case where the order was made. The petitioner relied on Anthony Otiende Otiende v Public Service Commission & 2 others [2016] eKLR and George Ndemo Sagini v Attorney General & 3 others [2017] eKLR to support the position that the regulations become void by an act of law and annulment by the National Assembly.
The petitioner argued that the regulations having been voided, it followed that at the time the board was constituted, any function or duty it carried out pursuant to the regulations was void. Reliance was placed on Bedford Quarries v Bough, (1907) 168 Ind. 671, 80 N.E. 539, 14L.R.A. 418; Carr v State (1890) 127 Ind. 204, 26 N.E. 778; L.R.A. 370 and Chicago, Indianmpolia & Louisville Ry. v. Hackett, (1912) 227 U.S. 559, S, Ct., 57 L. Ed.966, among others decisions. In that regard, the petitioner argued, inspecting and vetting security firms under void regulations, including appointments made, violated articles 4(2), 10(2) and 47(1) of the Constitution.
On lack of public participation, the petitioner relied on articles 1(2), 4(2) and 10(2) (a) of the Constitution and decisions in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR; Doctors for Life International v The Speaker of the National Assembly (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006) ; Minister of Health and Others v Treatment Action Campaign and Others [2002] 5 LRC 216, 248; Minister of Health & Another v New Clicks South Africa (Pty) Ltd and Others [2006] (2) SA 311 (CC) and Republic v Private Security Regulatory Authority & 2 others Ex parte Charles Arori (Chief Shopsteward) G4s & 9 others; Stephen P. Ng’ang’a (interested Party) eKLR, among others.
The petitioner maintained that Prof. Ng’ang’a and Fazul being in office violates the principles in articles 10, 73 and 232 of the Constitution and section 5 of the Public Service (Values and Principles) No. 1A of 2015.
based on the above averments, the petitioner sought the following relief:
A declaration that having been voided by the National Assembly the Private Security (General) Regulations, 2019 are invalid, null and void ab initio and anything based on them is equally invalid, null and void.
A declaration that the authority’s decision to visit offices of private security companies to inspect and vet them during the nationwide lockdown to contain the COVID-19 pandemic is irresponsible, unreasonable, and unlawful and, therefore, invalid, null and void.
An order:
Quashing the ongoing process of inspecting and vetting security firms until the Cabinet Secretary enacts Regulations under the Private Security Regulations Act (No. 13 of 2016) to guide the process.
Quashing the Private Security Regulatory Authority’s email containing further criteria for the vetting of private security companies.
Quashing the Private Security Regulatory Authority Training Curriculum.
Quashing Gazette Notice No. 10237 of the 28 th October, 2019 appointing the independent stakeholder members of the Board of the Private Security Regulatory Authority.
Quashing the appointment of Yusuf Mahamed Fazul as the CEO/ Director of the Private Security Regulatory Authority.
Compelling the Cabinet Secretary, Ministry of Interior and Coordination of National Government to enact Regulations under the Private Security Regulations Act (No. 13 of 2016) strictly in compliance with law, including by providing for effective public participation.
Compelling the Cabinet Secretary, Ministry of Interior and Coordination of National Government to degazette the appointment vide Gazette No. 6868 of 21 st July 2017 of Prof. Stephen P. Ng’ang’a as the Chairman of the Private Security Regulatory Authority.
Compelling the respondents to pay the costs of this suit.
Any other relief the court may deem just to grant.
1 sst 2 nd, 5 th and 6 th respondents’ case
The 1 st , 2 nd , 5 th and 6 th respondents opposed the petition through a replying affidavit sworn by Fazul. The respondents stated through the replying affidavit that vetting of private security companies was conducted pursuant to the provisions of the Act; the 1 st and 2 nd respondents’ decision was in compliance with the Constitution and the Act and the complaints about vetting are premature for failing to comply with section 43 of the Act. Section 43 is on appeals against decisions of the Authority to the Cabinet Secretary.
The respondents took the position that pursuant to the Public Order (State Curfew) Order, 2020, licensed security firms were listed among persons exempt from the application of the curfew regulations. For that reason, in undertaking their mandate, the 1 st and 2 nd respondents were obligated to ensure that only licensed security firms were within the exemption.
The 1 st , 2 nd, 5 th and 6 th respondents argued that the vetting conducted did not include any physical contact; was done with full appreciation of the Ministry of Health guidelines and in conjunction with other national security institutions, including Kenya Revenue Authority and National Police Service.
Regarding the development of a training curriculum, they argued that as a statutory function of the 1 st respondent, it was carried out pursuant to sections 9(i), (j) and (k) of the Act and not the Regulations. 9(i) provides for encourage and promote efficiency and responsibility in the rendering private security services; (j) set standards and accredit institutions offering training of security service providers and prospective security service providers to ensure a high-quality training and (k) set standards to encourage equal opportunity employment practices in the private security services industry. They further argued that the curriculum was developed following broad consultations with over 200 security companies and representatives of industry players thus, it was lawful and valid.
The 1 st , 2 nd 5 th and 6 th respondents maintained that the petitioner did not adduce evidence to rebut the regularity presumption. They relied on Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR and Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR.
The 1 st , 2 nd , 5 th and 6 th respondents again relied on the decision in Independent Electoral and Boundaries Commission & 4 others v David Ndii & 82 others; Kenya Human Rights Commission & 4 others (Amicus Curiae) [2021] eKLR, to submit that vetting, registration and licensing was conducted in accordance with national values and principles of governance in article 10 (2) of Constitution. The petitioner did not adduce evidence to show violation of article 47of the Constitution.
Regarding the appointment of board members, these respondents asserted that the appointment was the result of broad consultations with relevant stakeholders, including Kenya Private Security Workers Union; Kenya Security Industry Association and Kenya Alliance of Residents Associations. Stakeholders complied with their internal procedures before submitting names of nominees after which the 3 rd respondent appointed members of the board on 31 st October 2019 in accordance with section 11(2) of the Act before the regulations were annulled on 19 th November 2019.
The 1 st , 2 nd , 5 th and 6 th respondents maintained that Jackson was nominated by Kenya Association of Security Professionals while Andrew was nominated by Kenya Security Industry Association. Joash Soita and Isaac Andabwa were nominated by the only registered Private Security Workers Union representing both large-scale and small-scale employees. The nomination of Eng. Bernard Muriuki to represent the resident associations was consultative, open, transparent and competitive while the appointment of Barry Steven was not prohibited since he is a representative of the Kenya Private Sector Alliance which comprises both citizens and non-citizens. He was thus, nominated by Kenya Private Sector Alliance to the board.
The 1 st , 2 nd 5 th and 6 th respondents took the position, that Fazul’s recruitment was competitive and complied with the Act, which stipulates the procedure for appointment and removal of the CEO which the petitioner ought to pursue. They maintained that the challenge to the appointment of the chairperson is an abuse of the court process as it should have been brought up in Judicial Review No. 37 of 2017 (supra).
The 1 st , 2 nd , 5 th and 6 th respondents relied on several decisions, including Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex parte Alfred Kiptoo Keter & 3 others [2018] eKLR; Leonard Otieno v Airtel Kenya Limited [2018] eKLR; Raila Odinga v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 6 (KLR) and John Harun Mwau v Attorney General (2015) eKLR.
3 rd and 4 th respondents’ response
The 3 rd and 4 th respondents opposed the petition through a replying affidavit sworn by Dr. (Eng.) Karanja Kibicho, CBS, Principal Secretary, Ministry of Interior and written submissions. The 3 rd and 4 th respondents argued that prior to the appointments, the 3 rd respondent made general regulations to provide for the procedure for appointing representatives under section 11 (1) (b)(vi) and (vii), among other requirements. The regulations were widely circulated for public participation after which they were gazetted and became part of the subsidiary legislation. They were, however nullified on 19 th November 2019 for, among other reasons, lack of public participation.
Regarding the appointments, the 3 rd and 4 th respondents urged that they were transparent and complied with the Constitution, the Act and the regulations before they were annulled. The Authority carried out broad consultations with relevant stakeholders, including Kenya Private Security Workers Union, Kenya Security Industry Association and Kenya Alliance of Residents Associations.
The 3 rd and 4 th respondents maintained that relevant stakeholders conducted elections and submitted names of their nominees to the Cabinet Secretary for appointment after adequate consultation among major stakeholders in compliance with their internal procedures for nominating representatives to the board.
The 3 rd and 4 th respondent asserted that Barry Stephen Patrick represents Kenya Private Sector Alliance which comprises both Kenyans and non-Kenyans thus, his appointment was proper in law. Jackson Mbuthia and Andrew Solomon are not from one association while Josh Soita and Isaac Andabwa were nominated by the only registered Private Security Workers Union representing both large scale and small-scale employees. They were appointed them to the board on 31 st October 2019 pursuant to section 11 (1) and (2) of the Act and the regulations which were still in force at the time.
The 3 rd and 4 th respondents maintained that the petitioner is guilty of delay and did not come to court with unclean hands. The petition was filed five months after the regulations had been annulled on 19 th November 2019 and nine months after the regulations had been gazetted by the Cabinet Secretary. The petitioner did not also demonstrate how the appointments violated articles 27 and 232 of the Constitution.
The 3 rd and 4 th respondents maintained that Fazul’s appointment as CEO was done in compliance with the Constitution and the Act. The Gazette Notice dated 28 th October 2019 appointing the nominees was done in compliance with the Constitution, the Act and the regulations before they were annulled. In their view, annulling of the regulations did not affect actions taken prior to the annulment. They relied on section 11(4) of the Statutory Instruments Act and the decision in George Ndemo Sagini v Attorney General & 3 others [2017] eKLR.
The 3 rd and 4 th respondents posited that the petitioner should have filed an application for contempt in Judicial Review No. 37 of 2017 (supra). They relied on Samuel Kahiu v Jecinta Akinyi Soso Assistant County Commissioner Iloodokilani Ward/Division & another [2018] eKLR to support this position.
1 st Interested party’s response
The 1 st interested party filed a replying affidavit sworn by George Odhiambo in opposition to the petition. The 1 st interested party took the position that the curriculum was developed and published by the 2 nd respondent in line with its functions under section 9 of the Act. The curriculum was based on the Act and was published 4 months before the regulations were annulled.
The 1 st interested party contended that the objectives of the curriculum are in line with the objects of sections 3 and 9 of the Act which have not been questioned. In that regard, it was argued, annulling the regulations did not interfere with the implementation of the Act or performance of the functions of the 1 st and 2 nd respondents.
According to the 1 st interested party, the Act gave the 1 st and 2 nd respondents discretion to come up with ideas, actions and plans that give effect to the objects of the Act. The development of the curriculum was just one of the strategies. It was not an ultra vires decision since it was to promote the development of the private security service industry as required by section 9(e), (g) and (j) of the Act.
The development of the curriculum was not rushed as alleged; there was sufficient public participation during the 4 days consultative meeting (from 12 th March 2019 to 15 th March 2019); the meeting was convened by various private security providers attended by more than 20 firms and the 1 st respondent at Kenya School of Government. Views given on the curriculum were discussed at length.
The 1 st and 3 rd interested parties did not file submissions.
The 2 nd and 4 th interested parties informed the court that they had filed responses but there are responses in the CTS. They did not also file written submissions.
4 th interested party’s submissions
The 4 th interested party submitted that the appointment of board members was done in accordance with the Act and regulations then in force. Reliance was placed on the decision in Republic v Registrar of Companies & 2 others; Ex Parte Schindler Limited [2020] eKLR that the prayers in the petition are contrary to the rules of interpretation.
The 4 th interested party argued that there was no violation of the Constitution; the petitioner failed to appreciate the history of the private security sector and the previous conduct and injustice suffered where unions were directly affected and or addressed the rights of the private security sector.
The 4 th interested party relied on the decisions in Nairobi Metropolitan PSV Sacco Union Limited & 25 others v County of Nairobi Government & 3 others [2013] eKLR and Minister of Health and Another vs New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004) [2005] ZACC 14, that the petitioner did not outline violations on public participation.
Regarding the appointments of Isaac Andabwa and Josh Soita, the 4 th interested party contended that the appointments were made on the basis that the 4 th interested party union was registered and its sole purpose was to represent all private security personnel in the matter of the Private Security Workers in Kenya. Elections were conducted and the preferred candidates were appointed in accordance with internal procedures of the board.
The 4 th interested party took the position, that the petitioner failed to take steps to ensure compliance with the recommendation by the National Assembly in relation to the Report of the Committee. Reliance was placed on Justus Kariuki Mate & another v Martin Nyaga Wambora & another (2017) eKLR.
Determination
Upon considering the pleadings and arguments by parties, I have distilled the following issues for determination, namely; whether the appointments were done in compliance with the Constitution and the Act and whether the development of the curriculum was lawful.
Appointments
The petitioner argued that the committee’s report was adopted on 19 th November 2019 and pursuant to section 18 of the Statutory Instruments Act and Standing Order 210 (4) (b), the regulations stood annulled. Despite the adoption of the report annulling the regulations, the 3 rd respondent appointed members of the board which was unlawful.
The petitioner queried the appointment of Barry Stephen Patrick on grounds that he is not a Kenyan citizen; Isaac G.M. Andabwa and Joash Soita who were appointed to represent registered employee organizations because they were from one union and Jackson W. Mbuthia and Andrew Solomon appointed to represent registered associations representing private security firms because they were also from one association. The respondents maintained that the appointments were made while the regulations were still in force and were thus, lawful.
Section 11 (1) of the Act the states that the board of the Authority is to comprise; (a) a Chairperson appointed by the President;(b) principal secretaries responsible for internal security, finance and labour; a representative of National Police service; a representative of National Intelligence Service; two members of registered associations representing employees organisations elected in accordance with regulations prescribed by the Cabinet Secretary; two members of registered organisations representing private security firms elected in accordance with regulations prescribed by the Cabinet Secretary; one member nominated by registered resident associations to represent interests of residents and one member nominated by the Kenya Private Sector Alliance.
According to section 11(1), registered associations representing employees’ organisations elect two members; registered organisations representing private security firms elect two members; registered resident associations nominate one member to represent interests of residents and one member is nominated by the Kenya Private Sector Alliance. The two members from registered associations representing employees’ organisations and the two from registered organisations representing private security firms have to be elected in accordance with regulations prescribed by the Cabinet Secretary. That means there must be regulations in force to guide how those members are elected. The other members of the board are identified by virtue of the organisations they represent or offices they hold.
The petitioner argued that the regulations having been annulled there were no regulations for purposes of undertaking the appointment exercise. The petitioner further argued that some of the people appointed were not suitable to hold office.
Both sides agree that the regulations were annulled on 19 th November 2019. The petitioner argued that since the regulations were annulled, the appointments were void ab intion. The respondents maintained that the appointments were made before the annulment thus, they were lawful.
The regulations were gazetted on 5 th July 2019 and took effect on the same day. However, on 11 th October 2019 the National Assembly was petitioned to annul the regulations for lack of sufficient public participation and late tabling. The committee on delegated legislation considered the petition and tabled its report on 6 th November 2019 recommending that the regulations be annulled for lack of adequate public participation; unjustifiable delay in their publication or laying before the National Assembly. The National Assembly adopted the report to annul the regulations on 19 th November 2019. According to the petitioner, the regulations stood annulled pursuant to section 18 of the Statutory Instruments Act and Standing Order 210 (4) (b).
Section 18 of the Statutory Instruments Act on annulment of a statutory instrument, provides as follows:
When a report on a statutory instrument has been tabled in Parliament, the statutory instrument shall be deemed to be annulled if Parliament passes a resolution to that effect.”
It was on the basis of the above provision that the petitioner argued that the National Assembly having adopted the report to annul the regulations on 19 th November 2019, the regulations stood annulled and there were no regulations in force for purposes of enforcing the Act. The respondents took the view, that appointments were made before the regulations were annulled.
Further, that the appointments were transparent and complied with the Constitution; the Act and the regulations before they were annulled. The Authority carried out broad consultations with relevant stakeholders, including Kenya Private Security Workers Union, Kenya Security Industry Association and Kenya Alliance of Residents Associations. Relevant stakeholders conducted elections in compliance with their internal procedures for nominating representatives and submitted names of their nominees to the Cabinet Secretary for appointment.
Section 11 (1) of the Statutory Instruments Act requires every Cabinet Secretary responsible for a regulation-making authority to ensure that within seven sitting days after publication of a statutory instrument, a copy of the instrument is transmitted to the responsible clerk for tabling before the relevant House of Parliament.
Subsection (2) states that notwithstanding subsection (1) and pursuant to legislative powers conferred on the National Assembly under article 109, all regulation making authorities have to submit copies of all statutory instruments for tabling before the National Assembly. Under subsection (3), the responsible clerk has to register or cause to be registered every statutory instrument submitted to the respective House(s) for tabling or laying.
Subsection (4) is material, that if a copy of a statutory instrument that supposed to be laid before the relevant House of Parliament is not so laid as required, the statutory instrument “shall cease to have effect immediately after the last day for it to be so laid without prejudice to any act done under the statutory instrument before it became void.”
The regulations were gazette on 5 th July 2019 and took effect the same day. Although the petitioners attempted to argued that that the regulations became void for not being laid before Parliament as required by section 11(4). The petitioner states in his affidavit that the regulations were nullified on 19 th November 2019. If the regulations had become void before the National Assembly adopted the report on 19 th November 2019, there would have been no point for consideration of the petition by the committee and the debate and adoption of the report by the National Assembly. The regulations were annulled by the National Assembly following the adoption of the committee’s report to that effect on 19 th November 2019.
There is no dispute that action had already been taken pursuant to the regulations prior to annulment. In that regard, as subsection (4) states, where the statutory instrum
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