REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

 CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

 PETITION NO.  385 OF 2018

OKIYA OMTATAH OKOITI............................................................PETITIONER

 VERSUS

THE HON. ATTORNEY GENERAL......................................1^ST RESPONDENT

THE NATIONAL ASSEMBLY................................................2^ND RESPONDENT

RULING

1.  The petitioner herein, who describes  himself as a law abiding citizen  of Kenya, a public spirited individual and a human rights defender  filed the instant petition against the respondents herein on 7^th November  2018 seeking the following  declaratory orders:

i.  A declaration that section 17 (1) (a) and (b) of the National Cohesion and Integration Act No. 12 of 2008 and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the First Schedule to the Act is unconstitutional and, therefore, invalid, null and void.

ii. A declaration that any appointments  made pursuant to Section 17(1) (a) and (b)  of National Cohesion and  Integration Act, No. 12 of 2008 and the procedure for nominating  commissioners of the National Cohesion and Integration Commission by the National Assembly under the First Schedule to the Act is unconstitutional and, therefore , invalid, null and void  ab initio.

iii. An order quashing Section 17(1)(a) and (b) of the National Cohesion and Integration Act, No. 12 of 2008 and the procedure for nominating commissioners of the National Cohesion and Integration Commission by the National Assembly under the First Schedule to the Act is unconstitutional and therefore null and void ab initio.

iv. An order quashing any appointments  made pursuant  to Section  17(1)(a) and (b) of the of the National Cohesion and Integration Act, No. 12 of 2008 and the procedure for nominating commissioners of the National Cohesion and Integration Commission  by the National Assembly under the First Schedule to the Act

v. An order that the costs of this suit be provided for.

vi. Any other relief the court may deem just to grant.

2. Concurrently with the petition the petitioner also filed  the application that is the subject  of this ruling being application dated  7^th November 2018  seeking orders:

1. Spent

2. That pending the  inter- partes hearing and determination of this application  and/or the petition herein he  Honourable court be pleased to issue a conservatory  order suspending the  scheduled interviews of candidates shortlisted for appointment as commissioners of the National Cohesion and Integration Commission as advertised  by the 2^nd  respondent in the Press on 2^nd November 2018.

3. That pending  the  inter-partes hearing and determination of this application  and/or  the petition herein the  Honourable court be pleased to issue a temporary order of prohibition  prohibiting the  interviews of shortlisted candidates for appointments as Commissioners of the National Cohesion and Integration Commission as  advertised  by the 2^nd respondent in the Press on 2^nd November 2018.

4. That consequent to the grant of prayers above the Honourable court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.

5. That the costs of this application be provided for.

3. The application is premised on the grounds on the face of the application and the petitioner’s affidavit sworn on 7^th November 2018.

4. A summary  of the applicants  case is that on 2^nd November 2018, he read an advertisement posted in the press to the effect that the 2^nd respondent had embarked on the process of recruiting persons for appointment as Commissioners of the National Cohesion and  Integration Commission  and that the interviews are slated for 12^th  to 14^th November,  2018.

5. According to the petitioner the said recruitment by the 2^nd respondent contravenes the constitutional principle of separation of powers.  The petitioner’s case is that both 17(1)(a) and (b) of National Cohesion and  Integration Act, No. 12 of 2008 (hereinafter “ the Act”) and the First Schedule of the Act  are unconstitutional  since recruitment  of persons to be  appointed  to public office is the preserve  of  the Public Service Commission (PSC) and the executive, and not of Parliament.

6. The petitioner contends that Section 17(1) (a) and (b)  of the Act  and  the procedure for nominating commissioners by the National Assembly under the First Schedule of the Act are both unconstitutional and therefore, invalid, null and void  ab initio.  He contends that the Act predates the Constitution and that pursuant  to Section 7(1) of the Sixth Schedule of the Constitution, must ‘be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.’

7. At the hearing of the application the petitioner, who appeared in person, submitted that the legal framework on which the recruitment is based is illegitimate and urged the court to arrest it as the purpose of the petition is to prevent the violation of the Constitution.  The petitioner argued that if the recruitment process is not suspended/arrested, the short listed candidates will be interviewed and appointed thereby defeating the main prayers sought in the petition.

8. The petitioner maintained that the balance of convenience tilts in favour of granting of the conservatory orders sought as the said orders are not final since the recruitment process will be allowed to proceed should the petition be disallowed.

The  1^st  respondent’s case

9. The 1^st respondent opposed the application through the grounds of opposition filed on 8^th November 2018 in which the following grounds were listed:

1. This being a recruitment process that leads to the occupation of an office, the same is an employment and labour relations issue.  Consequently, this Honourable court lacks the requisite jurisdiction to entertain the same on account of Article 162(2)(a) and  165(5) (b)  of the Constitution.

2. The applicant is guilty of laches by filing the instant application for the reason that he has been aware there were intended recruitments to the National Cohesion and Integration Commission as was advertised in the local dailies of 5^th October, 2018.

3. The main petition  will not be rendered nugatory  should the sought conservatory orders  be denied  for the reasons that:

i.  The issue raised therein will still present  live controversies for the court to consider and determine  on their merits;

ii. This Honourable court still has the power to remedy any unconstitutionality that it may find with the impugned Section 17(1) (b) of the National Cohesion and  Integration Act, 2018.

4. The public interest favours a denial of the conservatory orders sought.  This  is so because;

i.  Public funds have already been expended in the intended recruitment exercise that is set to begin on Monday 12^th November, 2018.

ii. Those candidates who have been shortlisted to take part in the said interviews have already made arrangements to attend  the said interview;

iii. The interview  process is not  the end result  of the entire process since there will be deliberations and  considerations to be done thereafter  for suitable persons  to be identified  from the list of the persons  who shall have attended  the interviews;

iv. It would be prudent to allow the interview process to proceed as scheduled since the court is capable of intervening before the actual recruitment is done.

5. The petitioner has failed to sufficiently demonstrate, with concrete evidence, that this court is incapable of remedying a purported constitutional violation should there be a finding to that effect.

6. The notice of motion application is unmeritorious; as such it otherwise forms a classical description of an abuse of the due process of this Honourable court.

10. At the hearing of the application, Mr. Ogosso, learned counsel for the  1^st respondent, expounded on the grounds of opposition listed hereinabove and argued that  this court lacks  in jurisdiction to entertain the case  as it relates to recruitment of commissioners which falls under the docket of the Employment and  Labour Relations Court (ELRC).

11. Counsel submitted that the applicant is guilty of laches in view of the fact that the recruitment process began on 5^th October 2018 and the applicant filed the case one month later on 7^th October, 2018.

12. Counsel submitted that the issues raised in the petition will still be live even if the recruitment goes on as scheduled as the court will still be able to determine the merits of the petition and remedy any violation of the Constitution.

13. According to Mr Ogosso, public interest favours the denial of the orders sought because public funds have already been spent in the recruitment process.

2^nd  respondent’s case

14. The 2nd respondent filed grounds of opposition dated 8^th October 2018 in which it states that recruitment of state officers is not within the scope of the Public Service Commission as alleged by the petitioner and further, that National Cohesion integration Commission is not a Chapter 15 commission under Article 248 of the Constitution.

15. The 2^nd respondent further states that the recruitment of state officers is not an exclusive  function of the executive and that it is trite  law that there is presumption of constitutionality of the statutes until the contrary is proved.

16. It is the 2^nd respondent’s case that the petitioner has not stated the particular provision of the Constitution that has been contravened by the impugned legislation. The 2^nd respondent maintains it is trite law that every application that is likely to affect any party in a matter cannot be canvassed in the absence of a party that it seeks to affect.

17. At the hearing of the application, Mr. Mwendwa, learned counsel  for the 2^nd respondent, reiterated the 1^st respondent’s argument that this court has no jurisdiction to entertain the petition and  application as it falls  in the jurisdiction of the Employment and  Labour Relations Court.

18. Counsel submitted that pursuant to Article 234 (b) of the Constitution, the recruitment process in the government of Kenya is not a preserve of the Public Service Commission.  Counsel submitted that the applicant has not made out a prima facie case so as to warrant the issuance of the conservatory orders sought.  It was submitted that for purposes of the doctrine of separation of powers, the function of recruitment is not an exclusive mandate of the executive.

19. Counsel further argued that on the basis of the doctrine of  presumption of constitutionality of statutes the court should find that  as long as  the  impugned  Section of the Act  has not  been declared unconstitutional, then the recruitment process should not be declared unconstitutional.  Counsel reiterated that the petitioner has not established the provision of the constitution that has been violated.  He further argued that the 54 candidates shortlisted for the interviews have not been notified of this case yet the orders sought will affect them.  For this argument counsel cited the case of Judicial Service Commission  vs Mbalu Mutava [2015] e KLR wherein it  was held that it is not only prejudicial  but also injurious  to the administration of justice to condemn persons who are not parties to the case.  Counsel also referred to the case of Peter Munya vs Mwenda Kithinji [2014[ e KLR in which the grounds on which conservatory  orders may be issued was discussed.  Reliance was also placed on the decision in the case of Mwangi Wairia vs Speaker of Muranga County Assembly [2015] e KLR

20. On separation of powers, counsel cited the case of Justice Kariuki Mate & Another vs Martin Nyaga Wambora[2017] eKLR wherein  it was  observed that where a law requires  a state organ to undertake a special mandate, the court should exercise restraint when considering an application that may curtail an ongoing process.

Determination

21. I have considered the instant application, the grounds of opposition filed by the respondents and the rival submissions made by the petitioner and the respondents counsel together with the authorities that they cited.  The main issues that fall for the determination by this court are whether the applicant has made  out a case to warrant the issuance of the conservatory orders sought pending the  hearing and determination of the petition and whether this court has jurisdiction  to entertain this matter.

22. On jurisdiction, the respondents argued that since the case relates to recruitment of commissioners, it is an employment matter that should be handled by the Employment and Labour Relations Court in line with the provisions of Article 162 (2)(a) of the Constitution.  The applicant, on the other hand, argued that the petition challenges the constitutionality of the provisions of Section 17 of the Act and the First Schedule thereof and is therefore a matter falling under the purview of this court. Jurisdiction is the authority granted to a court of law to administer justice and has been likened to an engine that enables the court to take cognizance of matters presented before it for determination as without jurisdiction, the court’s decisions will be in vain.  As was aptly stated by Nyarangi JA in the case of Owners of Motor Vessel Lillian”S” v Caltex Oil ( Kenya) Limited [1989] 1 KLR 1:-

“Jurisdiction is everything.  Without it a court has no power to make one more step.  Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court of law downs tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction….”

23. The Supreme Court expressed itself in support of the issue in RE: The matter of Interim Independent Electoral and Boundaries Commission [2011] eKLR  as follows:-

“The Lilian “S” established that jurisdiction flows from the law and the recipient court is to apply the same with any limitation embodied therein; such a court may not arrogate itself jurisdiction through a craft of interpretation, or by way of endevours to discern or interpret intentions of parliament, where the wording of the legislation is clear and their respective jurisdictions are donated by the constitution.”

24. In the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court once again stated–

“A court’s jurisdiction flows from either the constitution or legislation or both.  Thus a court of law can only exercise jurisdiction as conferred by the constitution or the other written law.  It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… where the constitution exhaustively provides for jurisdiction of a court of law, the court must operate within the constitutional limit.”

25. The above cited decisions illustrate the fact that a court of law must first have jurisdiction before it can proceed to hear a matter presented before it and must exercise that jurisdiction in accordance with the law.  Article 165(3) of the Constitution is clear in its provisions and needs no explanation. The said Article bestows jurisdiction on this Court as follows:-

(3) Subject to clause (5), the High Court shall have—

(b)  jurisdiction to determine the question whether a right or fundamental right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of-

i. the question whether any law is inconsistent with or in contravention of this Constitution;

ii. the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.

26. Article 23 (1) reiterates the fact that the High court has jurisdiction in accordance with Article 165, to hear and determine applications to  redress  denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights.  At the center of the instant petition, as can be discerned from the orders sought in the petition, is the claim that section 17 (1) (a) and (b) of the Act and the First Schedule thereof, on which the impugned recruitment is anchored is unconstitutional and should be declared as such. To my mind, the main issue for determination is not the recruitment per se, but the validity of the law on which it is founded. I therefore find that it goes without saying that this court has jurisdiction to deal with the instant petition as it raises questions of violation/ threat of violation of the Constitution and the constitutionality of the impugned Act.

Conservatory orders

27. Turning to the issue of conservatory orders, the law is now settled on the conditions to be met before the said orders can be granted. Courts have severally held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition.  At this stage the applicant is only required to establish a prima facie case with a likelihood of success.  Accordingly, in determining this application, this Court is not required, and is indeed it is forbidden from making definite and conclusive findings on either fact or law.

28. For the above reasons, I find that even though the issues raised by the respondents in their grounds of opposition to the application such as the non-joinder of some parties, the alleged delay in filing the petition and the doctrine of constitutionality of statutes among others, are valid points of law and fact, this court cannot make conclusive determination on the said issues at this interlocutory as they are issues that will be determined by the court that will eventually hear the petition.  I will therefore not venture into the forbidden path of making any determinations whose effect would have the impact of prejudicing the hearing of the main Petition.

29. Apart from establishing a prima facie case, the applicant must further demonstrate that unless the conservatory order is granted he or she stands suffer real danger which may be prejudicial to him or her. See Centre for Rights, Education and Awareness (CREAW) & 7 others vs. The Hon. Attorney General, Nairobi HC Pet.  No 16/2011, Muslims for Human Rights (MUHURI) & 2 others vs. The Attorney General & Judicial Service Commission, Mombasa HC Pet. No. 7 of 2011

30. In the case of Centre for Rights Education and Awareness (CREAW) & 7 Others Nairobi Petition No. 16 of 2011 Musinga, J (as he then was) stated that:

“...It is important to point out that the arguments that were advanced by Counsel and that I will take into account in this ruling relate to the prayer for a Conservatory Order in terms of prayer 3 of the Petitioner’s Application and not the Petition.  I will therefore not delve into a detailed analysis of facts and law.  At this stage, a party seeking a Conservatory Order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the Conservatory Order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.”

31. In a majority decision in the case of The Centre for Human Rights and Democracy & Others vs. The Judges and Magistrates Vetting Board & Others Eldoret Petition No. 11 of 2012, it was held as follows:

“In our view where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any Constitutional or legal right or any burden is imposed in the contravention of any Constitutional or legal provision or without the authority of the law or any such legal wrong or injury is threatened, the High Court has powers to grant appropriate reliefs so that the aggrieved party is not rendered, helpless or hapless in the eyes of the wrong visited or about to be visited upon him or her. This is meant to give an interim protection in order not to expose others to preventable perils or risks by inaction or omission.”

32. Similarly, in Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR this Court expressed itself as follows in regard to Conservatory orders:

“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land.  They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ.  Therefore such remedies are remedies in rem as opposed to remedies in personam.  In other words they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”

33. This position was adopted by the Supreme Court in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others, S.C. Application No. 5 of 2014, the Court held as follows at paragraph 86 and 87:

“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest.  Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay.  Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes...”

34. On the question of whether the applicants have established a prima facie case I find that it has been held that a prima facie case is not a case which must succeed at the hearing of the main case but is rather a case which is not frivolous.  In other words the applicant must demonstrate that his case discloses arguable issues and in this case arguable Constitutional issues.  As I have already stated in this ruling, the applicant’s case is that the law upon which the recruitment is anchored, being section 17 (1) (a) and (b) of the Act together with its First Schedule is unconstitutional, for violating the constitutional principle of separation of powers among other violations. My take is that having considered the totality of the issues raised in this petition, this Court cannot say that the Petitioner’s case is frivolous as it raises fundamental questions about the constitutionality of the provisions of an Act of parliament which questions this court cannot ignore.  I therefore find that the petitioner has satisfied the requirement of establishing that he has a prima facie case and that under Article 23(3) (c) this court has powers to grant an appropriate relief including a conservatory order. 

35. Turning to the issue of the irreparable loss to be suffered in the event that the conservatory orders sought are not granted, the applicant contended that failure to secure the conservatory orders may result in the recruitment of commissioners under a law that does not meet the constitutional test of validity thereby rendering his petition a non-starter. The respondents, on the other hand, were of the view that the court can still make a pronouncement on the constitutionality of the impugned sections of the Act even after the recruitment process has been undertaken. My finding is that while both arguments are valid, in this case, the court is faced with a scenario where a party has raised a red flag on the validity of a process that is on course but is yet to be finalized. I note that the main prayer sought in the instant application is not an order to quash or declare recruitment process unconstitutional but rather, to suspend the process, albeit temporarily, as the court interrogates the constitutional questions that have been raised by the applicant over the said process.

36. My finding on the issue of irreparable loss is that the substratum of the petition stands to be rendered nugatory if the orders sought are not granted as the subsequent determination on the validity of a recruitment process that has already been executed will be akin to locking the stable after the horses have bolted. Even though it is true that the court can still pronounce itself on the constitutionality of the impugned sections of the Act at any time even after the recruitment has taken place, I find that the justice of this case will require this court preserves the subject matter of the petition. My take is that should the court, after hearing the petition, find that it is unmerited, the recruitment will proceed as planned and from where it had reached while on the flipside, should the court decline to grant the orders sought only to eventually find that the petition has merit, then the applicant and indeed the respondents may be forced to embark on a tedious and costly process of undoing the recruitment process and starting the same all over again. In this case, the respondent did not state that it stands to suffer any prejudice if the recruitment process is put on hold pending the determination of this petition save for the claim that a lot of resources had already been spent in the recruitment process. According to the applicant he seeks the suspension of the recruitment process so  as to  prevent  the  threat to the violation of the Constitution and  preserve  the subject  matter  of the petition. He contended that further spending of public funds is stopped where the process has been contested for being unconstitutional. 

37. I find that having regard to the findings and observations that I have made in this ruling, the balance of convenience and indeed the wider public interest tilts in favour of suspending the recruitment process pending the hearing of the petition. I hasten to add that it will also be in the interest of the shortlisted candidates for the advertised positions to await the outcome of the petition before embarking on the interview so as not to be subjected to a recruitment process that is marred with claims of unconstitutionality and possible nullification or quashing of their appointments in the event that the petition succeeds.  

38. For the above reasons, I reiterate that the justice of this case requires that this court preserves the subject matter of the petition and I therefore allow the instant application dated 7^th November 2018, but with a rider that the petition be heard in an expeditious manner so that the public, which includes the applicant herein, the shortlisted candidates and the respondents can know the fate of the recruitment of commissioners of NCIC.

39. Consequently, I issue directions that the respondents file and serve their respective responses to the petition within 7 days from today’s date and the petitioner is at liberty to file a further affidavit, should he deem it necessary, within 3 days from the date of service with the responses. Parties may thereafter file and exchange written submissions to the petition before the hearing date.  Hearing  on 26^th November 2018 to highlight the submissions.

Dated, signed and delivered in open court at Nairobi this 9^th day of November 2018.

W.  A. OKWANY

JUDGE

In the presence of:

Petitioner

Mr. Angaya for the 2^nd respondent

Court Assistant- Kombo