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|Case Number:||Judicial Review Application 196 of 2015|
|Parties:||Republic v Attorney General,Anti-Counterfeit Agency,CS, Industrialization & Enterprise Development & Polycarp Igathe Ex-Parte Tom Odoyo Oloo|
|Date Delivered:||16 Dec 2015|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||George Vincent Odunga|
|Citation:||Republic v Attorney General & 3 others Ex-Parte Tom Odoyo Oloo  eKLR|
|Advocates:||Mr Okoth for the Applicant|
|Court Division:||Judicial Review|
|Advocates:||Mr Okoth for the Applicant|
The scope of legal provisions applicable to the appointment of the Chairman to the Board of Directors of the Anti-Counterfeit Agency
Republic v Attorney General & 3 others Ex-Parte Tom Odongo Oloo
Judicial Review Application No 196 of 2015
High Court at Nairobi
(Milimani Law Courts)
G V Odunga, J
December 16, 2015
Reported by Beryl A Ikamari
The Ex-parte Applicant instituted Judicial Review proceedings to challenge the appointment of the Interested Party as the Chairman of the Board of Directors of the Anti-Counterfeit Agency. The Interested Party, Polycarp Igathe, was appointed by the President of Kenya under the provisions of section 7(3) of the State Corporations Act. It was the Ex-parte Applicant's contention that the appointment was not procedural and was done in excess of power or jurisdiction as there was a substantive provision under the Anti-Counterfeit Act which governed the appointment. He elaborated that the existence of the substantive provision meant that the Interested Party could not be appointed under the State Corporations Act. It was also the Applicant's complaint that the process leading to the Interested Party's appointment was not transparent and that the considerations that led to his selection were unclear.
The Ex-Parte Applicant further stated that the proper appointing authority was the Cabinet Secretary for Industrialization and Enterprise Development and there were clear statutory guidelines to be considered by the Cabinet secretary in making the appointment. He also said that the Interested Party had a conflict of interest which would not allow him to serve in the capacity that he had been appointed. On conflict of interest, the Ex-parte Applicant elaborated that the Interested Party was a Managing Director and Chairman to the Boards of various companies which had an interest in counterfeiting. The interest included some of those companies being complainants at the Anti-Counterfeiting Agency.
i. Whether the President had authority to appoint the Chairman to the Board of Directors of the Anti-Counterfeit Agency.
ii. Whether the provisions of section 6 of the Anti-Counterfeit Act on the qualifications necessary for appointment as Chairman of the Board of Directors were applicable where an appointment was done by the President under section 7(3) of the State Corporations Act.
iii. The scope of legal provisions applicable to the appointment of a person as the Chairman to the Board of Directors of the Anti-Counterfeit Agency.
iv. Whether the Interested Party was suitable for appointment to the post of Chairman to the Board of Directors of the Anti-Counterfeit Agency given that there were allegations that he had a conflict of interests.
Judicial Review-certiorari, prohibition and mandamus-illegality, procedural impropriety and ultra vires-allegations that the appointment of the Chairman to the Board of Directors of the Anti-Counterfeit Agency was done in excess of authority and without compliance with statutory provisions-allegations that the appointed Chairman had a conflict of interest that made him unsuitable to serve in that office-Constitution of Kenya 2010; articles 10, 129 & 232; State Corporations Act (Cap 446), section 7(3); Anti-Counterfeit Act, No 13 of 2008, section 6(1)(a).
Statutes-interpretation of statutory provisions-the President's authority to make appointments under section 7(3) of the State Corporations Act-whether the President had authority to appoint a Chairman to the Board of Directors of the Anti-Counterfeit Agency given that there were substantive provisions in the Anti-Counterfeit Act which provided for the appointment to be done by the Cabinet Secretary for Industrialization and Enterprise Development-State Corporations Act (Cap 446), section 7(3); Anti-Counterfeit Act, No 13 of 2008, section 6(1)(a).
Statutes-interpretation of statutory provisions-legal provisions governing the appointment of the Chairman to the Board of Directors of the Anti-Counterfeit Agency-provisions applicable to the appointment as provided for in section 6(1)(a) and section 6(2) of the Anti-Counterfeit Act-Constitution of Kenya 2010; articles 10, 129 & 232; State Corporations Act (Cap 446), section 7(3); Anti-Counterfeit Act, No 13 of 2008, section 6.
State Corporations Act (Cap 446), section 7(3);
3) Notwithstanding the provisions of any other written law or the articles of association establishing and governing a Board, the President may, if at any time it appears to him that a Board has failed to carry out its functions in the national interest, revoke the appointment of any member of the Board and may himself nominate a new member for the remainder of the period of office of that member or he may constitute a new Board for such period as he shall, in consultation with the Committee, determine.
Anti-Counterfeit Act, No 13 of 2008, section 6(1)(a);
6. Board of the Agency
(1) The management of the Agency shall vest in a Board which shall consist of—
(a) a Chairman appointed by the Minister;
|History Advocates:||One party or some parties represented|
|Case Outcome:||Application Dismissed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI LAW COURTS)
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. 196 OF 2015
THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
IN THE MATTER OF GAZETTE NOTICE NO. 2831 DATED 17TH APRIL 2015 AND PUBLISHED ON 27TH APRIL 2015
IN THE MATTER OF THE PURPORTED APPOINTMENT OF THE INTERESTED PARTY AS THE CHAIRMAN OF THE BOARD OF DIRECTORS OF THE ANTI-COUNTERFEIT AGENCY
IN THE MATTER OF THE ANTI-COUNTERFEIT ACT
IN THE MATTER OF THE STATE CORPORATIONS ACT
IN THE MATTER OF THE PUBLIC OFFICER ETHICS ACT
IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT
AND IN THE MATTER OF THE NATIONAL VALUES AND PRINCIPLES OF GOVERNANCE
IN THE MATTER OF THE VALUES AND PRINCIPLES OF PUBLIC SERVICE
IN THE MATTER OF
REPUBLIC ……………………………………………….........................................……. APPLICANT
THE HON ATTORNEY GENERAL………….……..................................................1ST RESPONDENT
THE ANTI-COUNTERFEIT AGENCY…………..................................................... 2ND RESPONDENT
CS, INDUSTRIALIZATION & ENTERPRISE DEVELOPMENT……………..… 3RD RESPONDENT
POLYCARP IGATHE…………..........................................…………………….INTERESTED PARTY
EX-PARTE: TOM ODOYO OLOO
1. An order of certiorari to bring into this honourable court and quash Gazette Notice No. 2831 dated 17th April 2015 on published on 27th April 2015 appointing the Interested Party as the Chairman of the Board of directors of the 2nd Respondent.
2. An order of Prohibition to issue against the 1st Respondent, on behalf of the Government, from purporting to appoint the Interested Party as a director of Chairman of the Board of Directors of the 2nd Respondent or any other person whatsoever under the provisions of the state Corporations Act or under any other legal provisions save for the Anti-counterfeit Act.
3. An order of prohibition to issue against the 2nd Respondent from treating or in any other was holding out or according the Interested Party and treatment as a director or chairman of its board of directors on the strength of Gazette Notice NO. 2831 dated 17th April 2015 and published on 27th April 2015.
4. An order of Mandamus to issue as against the 3rd Respondent to compel the 3rd Respondent to proceed and appoint the chairman of the board of directors of the 2nd Respondent as required by the Constitution and the Anti-counterfeit Act.
a. The Interested Party is presently the Managing director of Vivo Energy, a complainant to the 2nd Respondent in maters counterfeiting especially in the energy sector.
b. The Interested Party is presently the chairman of Petroleum Institute of East Africa (PIEA), an umbrella body of intellectual property rights owners and a complainant to the 2nd Respondent as agent in matters counterfeiting in the energy sector.
c. The Interested Party is also presently the chairman of the board of directors of the 2nd Respondent, a body to which abuse of intellectual property rights is made by entities he is in control of as aforesaid.
d. The Interested Party as chairman and director of the 2nd Respondent is by law an inspector within the meaning of Section 22 of the Anti-counterfeit Act and therefore vested with the powers to enforce measures to combat counterfeiting.
e. The foregoing conflict of interest situation makes the Interested Party a partial participant in matters counterfeiting and therefore he cannot be expected to be impartial, fair and objective in dealing with members of the public suspected of engaging in counterfeiting.
f. The Interested Party has a direct vested, beneficial and pecuniary interest in matters counterfeiting especially in the energy sector and therefore he is susceptible to use his position to victimize, zealously, industry competitors under the false guise of fighting counterfeiting.
a. Fair competition and merit as the basis of appointment.
b. Affording adequate and equal opportunities for appointment at all levels of the public service.
1. That the application herein is unmerited and therefore an abuse of the due processes of the court.
2. That appointment was properly done under Section 7(3) of the State Corporations Act Cap 447 Laws of Kenya
3. That the President has powers under the Section 7(3) of the State Corporations Act Cap 446 Laws of Kenya to revoke the appointment of any member of the board and may himself nominate a new member.
4. That it was necessary for the president to appoint a new member of the board especially at this time when our market is experiencing a challenge of fake counterfeit products.
5. That the Applicant has not given any reasons to justify issuance of the orders herein and the same should be dismissed with costs to the Respondents.
Notwithstanding the provisions of any other written law or the articles of association establishing and governing a Board, the President may, if at any time it appears to him that a Board has failed to carry out its functions in the national interest, revoke the appointment of any member of the Board and may himself nominate a new member for the remainder of the period of office of that member or he may constitute a new Board for such period as he shall, in consultation with the Committee, determine.
“To propose (a person) for election or appointment; To name or designate (a person) for a position.”
“To name or to designate. To select or choose a person to be a candidate for office.”
“To select a person for a specific office, position, dty, or job. To select; to designate.”
“it is implied that power given to authorities or persons by an Act of Parliament must be exercised fairly, and the court has the power to reach out where the exercise of that power is unfair and I further endorse Lord Scarman’s quote in Reg vs. Secretary of State for the Environment Ex Parte Nottingham Shire Country Council  AC where he stated: “A power which is abused should be treated as a power which has not been lawfully exercised.”
“To ‘consider’ is to look at attentively or carefully, to think or deliberate on, to take into account, to attend to, to regard as, to think, hold the opinion...‘Consider’ implies looking at the whole matter before reaching a conclusion.”
“Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya...Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit”
“Whereas the court is mindful of the principle that the Legislature has the power to legislate and Judges shall give due deference to those words by keeping the balances and proportionality in the context of fast progressing issues of human rights which have given birth to the enshrinement of fundamental rights in the Constitution, the Constitution should not represent a mere body or skeleton without a soul or spirit of its own. The Constitution being a living tree with roots, whose branches are expanding in natural surroundings, must have natural and robust roots to ensure the growth of its branches, stems, flowers and fruits.”
“The law is a living thing: it adopts and develops to fulfil the needs of living people whom it both governs and serves. Like clothes it should be made to fit people. It must never be strangled by the dead hands of long discarded custom, belief, doctrine or principle.”
See Midland Bank Trust Co. vs. Green  2 WLR 130.
“A constitution must not be considered in a narrow and pedantic manner and that construction most beneficial to the widest amplitude of its power must be adopted... The concept that a Constitution ought to be read and interpreted in the same way as an Act of Parliament is not acceptable since the Constitution is not an Act of Parliament. It exists separately in the statutes. It is supreme law and its provisions ought to be interpreted broadly or liberally and not in a pedantic way i.e. restrictive way – Constitutional provisions must be read to give values and aspirations of the people. The Court must appreciate throughout that the Constitution, of necessity has principles and values embodied in it, that a Constitution is a living piece of legislation. It is a living document... The general provisions governing constitutional interpretation are that in interpreting the Constitution, the Court would be guided by the general principles that; (i) the Constitution was a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must therefore endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and the rule of law. A timorous and unimaginative exercise of judicial power of constitutional interpretation leaves the Constitution a stale and sterile document; (ii) the provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed.”
“The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship between the government and the governed. It is a ‘mirror reflecting the national soul’; the identification of ideals and….aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the Constitution must, therefore, preside and permeate the processes of judicial interpretation and judicial discretion.”
(1) This Constitution shall be interpreted in a manner that—
(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
(c) permits the development of the law; and
(d) contributes to good governance.
“On the issue of discretion Prof Sir William Wade in his Book Administrative Law has summarized the position as follows: The powers of public authorities are...essentially different from those of private persons. A man making his will, may subject to any right of his dependants dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law, this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land...regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest The whole conception of unfettered discretion, is inappropriate to a public authority which possesses powers solely in order that it may use them for the public good. But for public bodies the rule is opposite and so of another character altogether. It is that any action to be taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake, at every turn, all of its dealings constitute the fulfilment of duties which it owes to others; indeed, it exists for no other purpose…But in every such instance and no doubt many others where a public body asserts claims or defences in court, it does so, if it acts in good faith, only to vindicate the better performances of the duties for whose the merit it exists. It is in this sense that it has no rights of its own, no axe to grind beyond its public responsibility; a responsibility which define its purpose and justifies its existence, under our law, that is true of every public body. The rule is necessary in order to protect the people from arbitrary interference by those set in power over them...when litigants come to the courts it is the core business of the courts and the courts role is to define the limits of their power. It is not for the Executive to tell them when to come to court! It is the constitutional separation and balance of power that separates democracies from dictatorships. The courts should never, ever, abandon their role in maintaining the balance...From the above analysis this is a case which has given rise to nearly all the known grounds for intervention in judicial review, that is almost the entire spectrum of existing grounds in judicial review. It seems apt to state that public authorities must constantly be reminded that ours is a limited government – that is a government limited by law – this in turn is the meaning of constitutionalism.”
“public entity” means—
(a) the Government, including the National or County Government, or any department, State organ, agency, service or undertaking of the National or County Government;
(b) the National Assembly or the Parliamentary Service Commission;
(c) any corporation, council, board, committee or other body which has power to act under and for the purposes of any written law relating to the undertakings of a public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law; or
(d) a corporation, the whole or a controlling majority of the shares of which are owned by a person or entity that is a public body by virtue of any of the preceding paragraphs of this definition; and (e) statutory public bodies;
“pursuant to Article 80(c) of the Constitution, the provisions of Chapter Six of the Constitution and Part II of this Act except section 18 shall apply to all public officers as if they were State officers.”
“It would appear from the material before the Court that the question of the Interested Party’s suitability for public office was not addressed in accordance with the requirements of the Constitution. The Cabinet Secretary, the 1st respondent, had power of appointment under section 51 of the Water Act… At section 2 of the First Schedule to the Act, it is provided that those proposed for appointment as Board members of Water Services Boards must be appointed on the basis of educational qualifications, experience, character and integrity of potential candidates for membership. Similar provisions are contained in section 22 of the Public Officers Ethics Act...The 1st respondent, however, had a duty, imposed on her by the people of Kenya, to consider the Interested Party’s suitability under the Constitution, and to make the appointment to the Board in accordance with the dictates of the Constitution...What does the Constitution require with regard to appointments to public office? As already observed, public officers must be appointed on the basis of the criteria set out in Chapter 6. They must also, in addition, be appointed in accordance with the national values and principles set out in Article 10… It has been conceded by Counsel for the respondents, however, that no-one knew or had any inkling that the Interested Party was going to be appointed as Chairman of the Water Services Board; and consequently, there was no opportunity for the petitioner or any other person to seek information about the appointment, or raise objections to the appointment, which objections would be expected to be considered by the Minister, and if found to be valid and sufficient to bar the appointment, the intended appointment ought not to be made...It seems to me therefore that the primary responsibility lay on the 1st respondent, and indeed on any other state officer making a similar appointment, to put in place a mechanism for recruitment or appointment of members of Boards of state corporations that would allow for public participation and consideration of the suitability and integrity of potential appointees as the Constitution now demands… It may seem that the Constitution has imposed an irksome and onerous burden on those responsible for making public appointments by requiring that they make the appointments on the basis of clear constitutional criteria; that they allow for public participation; and that those they appoint meet certain integrity and competence standards. This burden, however, is justified by our history and experience, which led the people of Kenya to include an entire chapter on leadership and integrity in the Constitution… In the present case, as the respondents tacitly concede, there are serious unresolved questions with regard to the integrity of the Interested Party which do not appear to have been considered by the 1st respondent in making the appointment to the Chairmanship of the Athi Water Services Board. It is the duty of the 1st respondent to consider the issues and, in exercise of the powers vested in her office under section 51 of the Water Act, applied in accordance with the Constitution, make a determination of the suitability of the Interested Party under Chapter 6 of the Constitution...In the premises, this petition succeeds to the extent that the Court finds that the 1st respondent failed to act in accordance with the Constitution, and her appointment of the Interested Party as Chairman of the Athi Water Services Board fell below the standard set by the Constitution… In the present case, the Court has found that no inquiry was made with regard to the suitability of the Interested Party under the Constitution, a responsibility that fell on the 1st respondent under the provisions of the Water Act as read with section 7 of the 6th Schedule to the Constitution. The responsibility still remains to make that inquiry. It is a responsibility that the Court does not deem proper to assume, but should require its proper exercise by the office vested with the authority to exercise it- the 1st respondent.”
“On the issue canvassed by the parties on the threshold of integrity required to be met, we note that the purpose of Chapter Six is to set higher standards of integrity for persons seeking to serve as State officers. Integrity is the firm adherence to moral and ethical values in one’s behaviour. Integrity is therefore not only about an individual’s own perception about the correctness or appropriateness of their conduct, but also has a fundamental social and public quality to it. It is our view that as the society also expects certain values to be upheld, the integrity provisions of the Constitution demand that those aspiring to State office be like Caesar’s wife: they must be beyond reproach.”
13.“However, it would be expected that the Minister, in making the appointments to the Tribunal, would be guided by the national values and principles set out in Article 10 of the Constitution, in particular participation of the people, equity, good governance, integrity, transparency and accountability. Section 7(1) of Schedule 6 provides that
‘All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’
Any appointments under the Standards Act should have been done in conformity with the provisions of the constitution and should have observed the national values and principles.
15. There is no evidence that there was a competitive process that would enable public participation in the process and show the transparency and accountability required under the Constitution, thereby giving legitimacy to the appointment of the petitioner. Like his successor, the petitioner was appointed on the basis of a Gazette Notice; the basis of the appointment, the criteria followed in appointing him and the other members of the Tribunal was, from all appearances and regrettably so, more in keeping with the old order that preceded and indeed gave impetus to the clamour for the new Constitution when public officers were appointed at the whim of the Minister or President. To uphold the appointment of the petitioner would be to give a seal of approval to the old order. It is imperative that all public appointments are made in accordance with constitutional values and principles.”
“The new Constitution has enshrined the Bill of Rights of all citizens and to say one group can not enjoy the right enshrined under the Bill of Rights is to perpetuate a fundamental breach of the constitution and to legalise impunity at very young age of our constitution. That kind of behaviour, act or omission is likely to have far and serious ramification on the citizens of this country and the rulers. It also raises basic issue of whether a President who has just been sworn in and agreed to be guided by the provisions of the Constitution can allow his agents to breach it with remarkable arrogance or ignorance. All these, are issues which require sober and attentive judicial mind in order to address the rights and obligations of all parties involved...Prima facie the allegations contained in this application is serious indictment on the institution of the Presidency and whether he is protecting, preserving and safeguarding the interests, rights and obligations of all citizens as contained in the new constitution. This application is a clear indication that the security arms of this country have not tried to understand and appreciate the provision of this new Bill of Rights. It also shows yester years impunity are still thriving in our executive arm of the government.”
“In the ordinary way and particularly in cases, which affect life, liberty or property, a Minister should give reasons and if he gives none the court may infer that he had no good reasons.”
“With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgement that in a democracy, and Kenya is one, the people are sovereign. The sovereignty of its people; the Republic is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All Government power and authority is exercised on behalf of the people. The second stop in the recognition that the sovereignty of the people necessarily betokens that they have a constituent power – the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution. Indeed it is not expressly textualised by the Constitution and, of course, it need not be. If the makers of the Constitution were to expressly recognise the sovereignty of the people and their constituent power, they would do so only ex abundanti cautela (out of excessiveness of caution)…The people’s constituent power is therefore above the Constitution itself. This is the power that enables the people to take part in a referendum and this power cannot be legislated upon by Section 43 of the Constitution to disenfranchise the very sovereign people from using their constituent power exercisable only through a referendum. There can be no doubt therefore that a referendum is clearly distinct from National Assembly and Presidential Elections. A referendum only comes and applies when the Constitution is to be made, altered or replaced. Indeed in some cases it may never come in one’s lifetime.
Dated at Nairobi this 16th day of December, 2015
G V ODUNGA
Delivered in the presence of:
Mr Okoth for the Applicant