[1] By his Petition dated 3rd September 2022, the Petitioner, Stewas Kimathi Kirugi, approached the Court for the following reliefs:
[a] A declaration that the 2nd respondent’s Board of Directors is not properly constituted as provided for under the provisions of the Kenya Maritime Authority Act No. 5 of 2006 and the State Corporations Act, Chapter 446 of the Laws of Kenya.
[b] A declaration that any decision, resolution and/or deliberation of the 2nd respondent is null and void ab initio from the month of February 2022 when the term of the Chairperson expired.
[c] Costs of the Petition.
[d] Such further orders as the Court may deem just and expedient.
[2] He averred that, on the 6th February 2019, the President of the Republic of Kenya appointed Mr. Geoffrey Ngombo Mwango as the Chairperson of the 2nd respondent for a renewable period of three years; which term came to an end on 8th February 2022. The petitioner further stated that the Chairperson’s term was not extended, and that by the time this suit was filed, no replacement had been made; yet the Board of the 2nd respondent continued to meet and conduct business notwithstanding that it is not properly constituted.
[3] The petitioner was apprehensive that the rush by the 1st respondent to make decisions on behalf of the 2nd respondent was likely to occasion it financial loss and plunge the Country into international conflicts. Additionally, the petitioner also feared that the 2nd respondent was likely to make adverse decisions against the 2nd respondent’s employees, thereby exposing the 2nd respondent to unnecessary and costly labour-related litigation.
[4] The Petition is expressed to be anchored under Articles 3, 10, 19, 20, 21, 22, 27, 28, 41, 47, 165(3), (6) and 260 of the Constitution. The petitioner also set out the functions of the 1st and 2nd respondents as well as the provisions of the Maritime Authority Act and the State Corporations Act which have allegedly been violated by the 1st and 2nd respondents. He pointed out that under Section 3(6) of the Second Schedule of the Kenya Maritime Act, the Chairperson is required to preside over every meeting of the Board in which he is present.
[5] The Petitioner therefore posited that all decisions/resolutions made between 8th February 2022 to 18th November 2022 in the name of Special Board Meetings are null and void ab initio and ought to be declared as such since they were made by a Board that was improperly constituted.
[6] The respondents opposed the Petition. In that regard, they relied on their Grounds of Opposition dated 19th December 2022 in which they contended that:
[a] The Petition is wrought with misrepresentations calculated to mislead the Court.
[b] To the extent that the petitioner failed to state precisely when the meetings complained of occurred and the specific decisions of the Board of Directors complained of, the Petition fails the test of the Anarita Karimi Njeru Case.
[c] To the extent that there is no violation or threat of violation of rights stated by the petitioner, the Petition before the Court is abstract and therefore not justiciable.
[d] The Petition before the Court is not justiciable to the extent that it involves itself with hypothetical situations.
[e] The Petition does not comply with the requirements of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules to the extent that it does not set out the constitutional provisions and or rights that have been violated or threatened with violation.
[f] The Petition does not comply with the requirements of Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules to the extent that it fails to disclose details of other cases relating to the matters in issue.
[g] The Code of Governance for State Corporations lays out the foundation for management, governance and oversight of state corporations.
[h] The Code of Governance for State Corporations provides that in the absence of the Chairperson to the Board one of the Board members designated by the Board members present at the meeting can chair the meeting.
[i] Paragraph 3(6) of the Second Schedule to the Kenya Maritime Authority Act provides that in the absence of the Chairperson and Vice Chairperson, the members present shall elect one of their number who shall, with respect to that meeting and the business transacted thereat, have the powers of the Chairperson.
[j] Paragraph 3(6) of the Second Schedule to the Kenya Maritime Authority Act ensures there is no vacuum in the leadership of the Board of Directors of the Kenya Maritime Authority.
[k] Vide Kenya Gazette Notice No. 14228 of 17th November 2022, Mr. Hamisi Mashobo Mwaguya was appointed the Chairperson of the Board of Kenya Maritime Authority for a period of three (3) years with effect from 18th November 2022.
[l] By reason of Kenya Gazette Notice No. 14228 of 17th November 2022, appointing Mr. Hamisi Mashobo Mwaguya the Chairperson of the Board of Kenya Maritime Authority the Petition before the Court is moot.
[m] There is no live controversy to warrant the grant of any of the orders sought by the petitioner.
[7] The Petition was canvassed by way of written submissions, pursuant to the directions given herein on 25th April 2023. The Petitioner filed written submissions dated 15th May 2023 and proposed the following issues for determination:
[a] Whether the Board of Directors of the 2nd respondent was properly constituted between the period 8th February 2022 and 18th November 2022 as stipulated under Section 6 of the Kenya Maritime Authority Act.
[b] Whether the Decisions/Resolutions deliberated between 8th February 2022 and 18th November 2022 should be declared null and void.
[8] The petitioner made reference to the definition of the word “Board” in Section 2 of the Kenya Maritime Authority Act as well as the functions of the Board as provided for in Section 6 of the Act and submitted that it was the responsibility of the Chairperson to preside over all meetings of the Board at which he was present. He further submitted that the word “absence” mentioned in Section 3(6) of the Second Schedule of the KMA Act does not imply a situation where there is a vacancy in the office of the Chairperson but when an occupant in the office of the Chairperson is unable to personally attend a particular Board meeting.
[9] The petitioner backed his submissions by making reference to Black’s Law Dictionary for the definitions of “absence” and “vacancy” and reiterated his stance that the 1st respondent was not properly constituted during the period in question. He further submitted that upon the termination of the Chairperson’s term by effluxion of time, the term of the Vice Chairperson automatically lapsed. He conceded that vide Gazette Notice No. 14228 dated 17th November 2022, the President appointed Mr. Hamisi Mashobo Mwaguya as the Chairperson of the 2nd respondent’s Board of Directors for a period of three (3) years with effect from 18th November 2022.
[10] In support of his contention that the Decisions/Resolutions of the 2nd respondent, deliberated between 8th February 2022 and 17th November 2022 ought to be nullified, the petitioner submitted that the 1st respondent conducted Special Board Meetings during the period aforementioned without the approval of the Cabinet Secretary and at a time when the office of the Chairperson was vacant. He accordingly prayed that the resolutions made during the period be nullified and orders granted in terms of the reliefs set out in his Petition.
[11] The respondents relied on their written submissions dated 19th June 2023. They submitted that the drafters of the KMA Act were careful to note that there may be instances where both the Chairperson and the Vice Chairperson were absent; hence the provision that the members present would then elect one person among them to preside over the meeting. The respondents were therefore of the posturing that the mere fact that there is a vacancy in the office of the Chairperson is no reason to invalidate proceedings of the Board, granted the provisions of Paragraph 3(8) of the Second Schedule to the KMA Act.
[12] Further to the foregoing, it was the submission of the respondents that the dispute is not justiciable in so far as it is lacking in specificity and the factual matrix in support of the allegations that at the 1st respondent held Special Board Meetings between February and November 2022. They further pointed out that, with the appointment of a Chairperson of the 1st respondent on 17th November 2022, prayer 11(a) of the Petition has been overtaken by events and is not capable of being granted. The respondents relied on Wanjiru Gikonyo and others v National Assembly of Kenya and 4 others [2016] eKLR and urged for the dismissal of this suit.
[13] It is plain from the foregoing that the respondents raised two technical objections to the Petition which must be attended to upfront by the Court before engaging in a merit consideration of the Petition. The issues are:
[a] Whether the Petition has been pleaded with the requisite specificity as required.
[b] Whether the issues raised in the Petition are justiciable.
[14] As to whether the Petition was pleaded with sufficient specificity, the respondent relied on Anarita Karimi Njeru v Republic in which it was held:
“…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.”
[15] It is equally significant to note that, under Rule 10(3) and (4) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, it is provided that:
“(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.
(4) An oral application entertained under sub rule (3) shall be reduced into writing by the Court.”
[16] Accordingly, I fully endorse the expressions of Hon. Odunga, J. (as he then was) in Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR that:
“On the issue whether this Court can determine the constitutional issues raised without compliance with the requirements stipulated in Anarita Karimi Njeru vs. Attorney General (supra), it is my view that the said decision must now be read in light of the provisions of Article 22(3)(b) and (d) of the Constitution under which the Chief Justice is enjoined to make rules providing for the court proceedings which satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation and that the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. Whereas it is prudent that the applicant ought to set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed, to dismiss a petition merely because these requirements are not adhered to would in my view defeat the spirit of Article 22(3)(b) under which these proceedings may even be commenced on the basis of informal documentation…”
[17] Moreover, in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, the Court of Appeal pointed out that:
“…precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
[18] In this respect, the Court of Appeal reiterated the viewpoint taken by a 3-judge bench of the High Court in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR in which it was held that:
“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the Court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are so insubstantial and so attenuated that a Court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case…”
[19] Bearing the foregoing in mind, it is notable that at pages 11 and 12 of the Petition (paragraphs 3 to 10) the petitioner set out the applicable provisions of the Constitution alleged to have been violated or threatened with violation. The facts in support of the alleged violations or threats of violations were likewise set out in paragraphs 6 to 22 of the Petition. In the premises, it cannot be said that the Petition is lacking in specificity as to the constitutional provisions alleged to have been infringed by the respondent.
[20] As to whether the Petition is justiciable, the respondents pointed out that the Petition was overtaken by events on 17th November 2022 when the President appointed a Chairperson of the 2nd respondent’s Board; such that prayer (a), namely, a declaration that the 2nd respondent’s Board of Directors is not properly constituted as provided for under the provisions of the KMA Act is now moot.
[21] As pointed out herein above, it is common ground that, vide Gazette Notice No.14228 of 17th November 2022, the President appointed Mr. Hamisi Mashobo Mwaguya the Chairperson of the Board of the 2nd respondent for a period of 3 years. The Gazette in question was annexed to the written submissions of the petitioner. Section 60(1)(f) of the Evidence Act is explicit that:
(1) The courts shall take judicial notice of the following facts—
…
(f) the accession to office, names, titles, functions and signatures of public officers, if the fact of their appointment is notified in the Gazette;”
[22] With that development, the question to pose is whether the subject matter of the Petition is now moot. According to Black’s Law Dictionary, Tenth Edition, at page 1161, a “moot case” is defined as “A matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights.” Hon. Mativo, J. (as he then was) in Daniel Kaminja & 3 Others (suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR, explained that:
23. A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.
24. It is trite that as a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law as it was at the time when the suit was instituted and by applying the facts to the law and circumstances. Time and again, it has been expressed that a court should not act in vain.[15]
25. No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.[16]
26. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.
[23] Similarly, in Wanjiru Gikonyo and others v National Assembly of Kenya and others (supra) it was held:
“27. Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is not expected to engage in abstract arguments. The court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness. An issue before the court must be ripe, through a factual matrix, for determination.
- Conversely, the court is also prevented from determining an issue when it is too late. When an issue no longer presents an existing or live controversy, then it is said to be moot and not worthy of taking the much sought judicial time. The exception it must be noted exists where the court is allowed by law to offer advisory opinions. A good example is Article 163(6) of the Constitution on powers of the Supreme Court of Kenya to give advisory opinions at the request of the national government on matters concerning county governments.”
[24] It is manifest therefore that, since the office of the Chairperson has since been filled, the Petition is moot in so far as Prayer 11(a) is concerned. That notwithstanding, the petitioner also prayed for a declaration that any decision, resolution and/or deliberation of the 2nd respondent is null and void ab initio from the month of February 2022 when the term of the Chairperson expired to 17th November 2022 when the succeeding Chairperson was appointed. He also prayed for costs of the Petition and such other or further relief as the Court may deem just. These prayers are still germane and therefore the single issue for determination is whether the declaratory order sought by the petitioner under Paragraph 11(b) of the Petition is tenable.
[25] The burden of proof was on the respondent to demonstrate that meetings were held between February and November 2022. This point was made by the Supreme Court in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment), as follows:
“…a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden…”
[26] Likewise, in Leonard Otieno v Airtel Kenya Limited [2018] eKLR it was emphasized that:
“65. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.”
[27] The Supreme Court restated the position in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) (Judgment) and held:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that she owned or erected or live in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[28] In this instance the petitioner merely alleged, at paragraph 14 of the Petition that the 2nd respondent continued to transact business by way of Board Meetings in contravention of the Kenya Maritime Authority Act and the Constitution of Kenya. It is noteworthy however that no evidence was presented by the petitioner to prove those allegations. In fact, no single mention of any of the meetings was made in the petitioner’s Supporting Affidavit, let alone proof by way of supporting documents. It was later in his submissions that the petitioner got specific and stated that four special board meetings were held by the respondents between February to November 2022 on 26th May 2022, 29th July 2022, 29th August, 2022 and 16th September 2022.
[29] It is now settled that submissions cannot take the place of evidence. Indeed, the Court of Appeal aptly captured the purpose and place of submissions in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi [2014] eKLR thus:
“…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented…”
[30] In the absence of proof, as a matter of fact, that meetings were held by the 1st respondent between February and November 2022 and the Minutes and resolutions made at the alleged meetings availed, it cannot be said that the petitioner has discharged his burden of proof in this matter to enable the Court interrogate the validity of the alleged resolutions. Additionally, Paragraph 3 of the Second Schedule of the Act, provides:
(1) The Board shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.
(2) Notwithstanding the provisions of subparagraph (1), the Chairperson or any three other members of the Board may call a special meeting at any time where it is deemed expedient for the transaction of the business of the Board, by giving not less than seven days’ written notice to the members.
(3) The members of the Board shall, at the first meeting of the Board, elect from amongst their number, a Vice-Chairperson and an honorary treasurer.
(4) Unless three-quarters of the total members of the Board otherwise agree, at least fourteen days’ written notice of every meeting of the Board shall be given to every member of the Board.
(5) The quorum for the conduct of the business of the Board shall be five members excluding the Director-General.
(6) The Chairperson shall preside at every meeting of the Board at which he is present but, in his absence, the Vice-Chairperson shall preside and in the absence of the Vice-Chairperson, the members present shall elect one of their number who shall, with respect to that meeting and the business transacted thereat, have all the powers of the Chairperson.
(7) Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and, in the case of an equality of votes, the Chairperson or the person presiding shall have a casting vote.
(8) Subject to subparagraph (5), no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.
(9) Subject to the provisions of this Schedule, the Board may determine its own procedures and the procedure for any committee of the Board and for the attendance of any other persons at its meetings and may make standing orders, inter alia, in respect of—
(a) the conduct and management of the affairs of the Board;
(b) the manner in which all payments, including cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for monies paid to the Board shall be signed, drawn, accepted, endorsed or otherwise executed;
(c) the procedure for meetings and other business of the Board;
(d) the duties of officers, employees, consultants and agents of the Board; and
(e)the conditions of service and remuneration of staff and other employees, consultants and agents of the Board.
[31] It is significant therefore that Paragraph 3(8) of the Second Schedule to the KMA Act explicitly states that:
“…no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.”
[32] By dint of Section 6 of the KMA Act, the Chairperson is a member of the Board like any other. It states: -
There shall be a Board of Directors of the Authority which shall be the governing body of the Authority consisting of—
(a) a Chairperson appointed by the President;
(b)the following persons or their representatives—
(i) the Permanent Secretary of the Ministry for the time being responsible for Maritime Transport;
(ii) the Permanent Secretary of the Ministry for the time being responsible for Finance; and
(iii) the Attorney-General;
(c) the Director-General appointed under section 11; and
(d)six other persons, with knowledge and experience in matters relating to the regulation of shipping industry, pilotage, maritime security, seafarer’s welfare, ports and harbours, appointed by the Minister.
[33] It is therefore not an inexorable rule that the Chairperson to be present for a decision to be valid. Meetings can be chaired by the Vice-chairperson, and in his/her absence, the members of the Board are allowed by the applicable legal framework to select a person from among the members present at the meeting to perform the functions of the Chairperson.
[34] In the premises, it is my finding that the Petition dated 3rd September 2022 lacks merit and is hereby dismissed. Each party to bear own costs of the Petition.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF NOVEMBER 2024