REPUBLIC OF KENYA

 IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 422 OF 2020

IN THE MATTER OF ARTICLES 23, 27, 50, 165, 201,232, 258 &259 OF THE CONSTITUTION

AND

IN THE MATTER OF SECTION 20(4) OF THE NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND ACT, ACT NO. 3 OF 2015

AND

SECTION 9(a) & 10 OF THE PUBLIC OFFICERS ETHICS ACT 2003

AND

IN THE MATTER OF APPOINTMENT AND GAZETTEMENT OF YUSUF MBUNO AS CHIEF EXECUTIVE OFFICER OF THE NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND BOARD

BETWEEN

SAM KINYUA............................................................................................PETITIONER

VERSUS

YUSUF MBUNO..............................................................................1^ST RESPONDENT

NATIONAL GOVERNMENT CONSTITUENCY                                                         

DEVELOPMENT FUND BOARD...............................................2^ND RESPONDENT

THE ATTORNEY GENERAL......................................................3^RD RESPONDENT

CABINET SECRETARY,                                                                                                 

NATIONAL TREASURY & PLANNING..................................4^TH RESPONDENT

THE NATIONAL ASSEMBLY...................................................5^TH RESPONDENT

AND

TOLBERT MANYAGE.........................................................INTERESTED PARTY

RULING

THE PETITION

1.  The Petitioner through a Petition dated 16^th December 2020 supported by affidavit sworn by Sam Kinyua of even date seek the following reliefs:-

a) A declaration do issue that the Appointment of the 1^st Respondent by the 3^rd Respondent vide Gazette Notice No. 3654 dated 22^nd May, 2020 was unlawful, in contravention of Article 259(1), (3) (b) the Constitution of Kenya, 2010 read with Section 20(4) of the National Government Constituency Development Fund Act and therefore null and void.

b) A declaration, do issue that the approval of the appointment of the 1^st Respondent by the National Assembly was unconstitutional, unlawful, and therefore null and void.

c) An order that costs of the Petition be awarded to the Petitioner.

PETITIONER’S CASE

2.  The Petitioner in the instant Petition urges that the Appointment of the 1^st Respondent as the substantive CEO of the National Government Constituencies Development Fund Board is unlawful. He therefore seeks the orders as indicated in the Petition herein above.

THE 1^ST RESPONDENT’S RESPONSE

3.   The 1^st Respondent filed a Replying Affidavit together with a Notice of Preliminary Objection all dated 5^th January 2021.

4.   The 1^st Respondent’s Preliminary Objection seeks to strike the Petition on the main grounds namely:-

i)   That both the Application and Petition dated 16^th December 2020 and filed on 18^th December, 2020 are sub judice as the issues raised therein are directly and substantially in issue in Nairobi High Court Constitutional Petition No. 474 of 2017, between the same parties litigating under the same title, which is still pending in Court.

ii)  That both the Application and Petition are incurably defective as they procedurally seek to review and/or appeal the decision of the 5^th Respondent dated 28^th April, 2020, which approved the nomination of the 1^st Respondent for the appointment to the position of the Chief Executive Officer of the National Government Constituencies Development Fund Board.

THE 2^ND RESPONDENT’S RESPONSE

5.   The 2^nd Respondent filed Notice of Preliminary Objection dated 6^th January 2021. The 2^nd Respondent opposes the Petition for being sub-judice.

THE 3^RD AND 4^TH RESPONDENT’S RESPONSE

6.   The 3^rd and 4^th Respondents filed Notice of Preliminary Objection raising 7 grounds of opposition. In summary the 3^rd and 4^th Respondents contends that this Court lacks jurisdiction to hear and determine the Petition.

ANALYSIS AND DETERMINATION

7.   Upon consideration of the Petition, the Respondents Preliminary Objections and the submissions I find that the issues raised in the Preliminary Objection can be summed up as follows:-

a) Whether this Court has jurisdiction to hear and demine the Petition herein.

b) Whether the Petition herein raises direct and substantial similar issues with Petition No. 474 of 2017 offending the provisions of Section 6 of the Civil Procedure Act and thereby offends the principle of sub-judice.

A. WHETHER THIS COURT HAS JURISDICTION TO HEAR AND DEMINE THE PETITION HEREIN.

8.  The 3^rd and 4^th Respondents contend by the dint of Article 162(2) and 165 (5) of the Constitution as read together with Section 12 of the Employment and Labour Relations Act, this Court lacks the requisite jurisdiction to hear and determine this Petition. It is further contended that this Petition ought to have been filed in the Employment and Labour Relations Court and not in this Court.

9.  It is further  the 3^rd Respondent’s contention that the Petition herein discloses an ordinary employment Labour Relations dispute which is disguised as a constitutional issue contrary to the provisions of Article 162 (2) and 165(5) of the Constitution as read together with Section 12  of the Employment and Labour Relations Act, No. 20 of 2011.

10.  The 3^rd and 4^th Respondents further urge that this Court lacks jurisdiction to transfer the Petition to the Employment and Labour Relations Court.

11. The 3^rd and 4^th Respondents urge that to the extent that the Application and Petition places reliance on public documents whose production is in violation of Section 80 of the Evidence Act, Cap. 80 Law of Kenya and parliamentary privileges laws, the exhibits, save for ‘SK – 1’, ‘SK – 4’, ‘SK – 5’, AND ‘SK – 6’, Exhibits ‘SK – 2’, ‘SK – 3’ and ‘SK – 7’ should be struck out of the record at the first instance and on a preliminary together with paragraphs 11 of the Petition, Paragraphs 12, 13 and 23 of the Replying Affidavit in support of the Petition, sworn in December 16, 2020.

12.  It is further the 3^rd and 4^th Respondents Preliminary Objection that to the extent that paragraph 23 of the Affidavit in support of the Petition is open to being struck out form record, the Petition is devoid of any iota of evidence and therefore totally unmerited. It is submitted that the same ought to be struck out at the first instance or on a preliminary, for lack of evidence and violation of Rule 11 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules.

13.  The 3^rd and 4^th Respondents further urge that in toto the Petition herein runs against the substantive declarations and holding of Lenaola J in Okiya Omtatah Okoiti & 2 others v Attorney General & 3 others [2014] eKLR, as upheld by the Court of Appeal in Okiya Omtatah Okoiti & 2 others  vs. Attorney General & 4 others [2020] eKLR, where it was held thus:-

“(a) A declaration is hereby issued that a Constitutional Petition cannot be founded on alleged “public documents” obtained and produced in breach of the Constitution of Kenya, 2010, the Evidence Act, Chapter 80 Laws of Kenya, and the Cross Petitioner/2^nd Respondent’s constitutional right to a fair hearing and fair administrative action.

(b) A declaration is hereby issued that a Constitutional Petition cannot be founded on documents whose source and or origin has not been disclosed by the Petitioner and whose authenticity therefore cannot be vouched for.

(c) A declaration that the use and production of alleged “public documents” by the Petitioner herein without disclosing their source and/or authenticity is a breach of the Cross Petitioner’s right to a fair hearing as guaranteed by Section 50 of the Constitution.”

14.  The Petitioner is opposed to the 3^rd and 4^th Respondents Preliminary Objection. The Petitioner urge that the arguments by 3^rd and 4^th Respondents hinge on Section 12(1) of the Employment and Labour Relations Court which states that:-

“The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including-

a) Disputes relating to or arising out of employment between an employer and an employee;

b) Disputes between an employer and a trade union

c) Disputes between an employers’ organization and a trade union’s organizations;

d) Disputes between trade unions,

e) Disputes between employer organizations;

f)  Disputes between an employers’ organization and a trade union;

g) Disputes between a trade union and a member thereof;

h) Disputes between an employer’s organization or a federation and a member thereof;

i)  Disputes concerning the registration and election of trade union officials; and

j)  Disputes relating to the registration and enforcement of collective agreements.”

15. The Petitioner contend that the Petition mainly deals with the appointment of the 1^st Respondent as the CEO of the NGCDF Board. The Petitioner is also challenging the legal foundation of the 1^st Respondent’s gazettement as the CEO of the Board. The Petitioner urges that this Petition therefore does not fall under Section 12(1) of the Employment and Labour Relations Act, as it deals with public interest issues.

16.  The Black Law Dictionary 9^th edition defines “public interest” as

“…The general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially which justifies Governmental regulation. In litigating on matters of “general public importance”, and understanding of what amounts to ‘public’ or ‘public interest’ is necessary.

Public is thus defined as “Concerning all the members of the community; relating to or concerning people as a whole; or all members of the community; of the state; relating to or involving government and government agencies; rather than private corporations or industry; belonging to the community as a whole, and administered through its representatives in government, e.g. public land….”

17.  The Petitioner further places reliance on Article 23 of the Constitution to urge this Court has jurisdiction, and urges once the public interest matters are in issue, this Court has jurisdiction. It is urged that the Court herein is called upon to interpret Section 20(4) of the NGCDF Act in the light to Article 259 (3) (b) of the Constitution. The above provisions is urged outline the term limit of a public Officer, which by a fact, is to safeguard public interest in ensuring that the constitutional values of Integrity and transparency are promoted within a public office.

18.  It is further Petitioners argument that he seeks to defend the principle of the Rule of Law which is the main principle within the Constitution. He urges that the Law has provided a term limit for one to be in the Office of the CEO and the 1^st Respondent is trying to out maneuver the law, hence putting himself above the law by overstaying in the Office of the CEO with the aid of the Respondents herein.

19.  The 3^rd and 4^th Respondents in support of their preliminary objection; that this Court lacks jurisdiction to hear and determine this Petition and that this is not the correct forum, for the Petitioner’s Petition, urge that this Court lacks requisite jurisdiction to entertain the Petition since the issues it raises are in the exclusive  domain of the Employment and Labour Relations Court, further it is urged that this Court lacks jurisdiction to transfer this matter to the Employment and Labour Relations Court. It is further urged that the exhibits relied on, in support of the Petitioner’s case i.e. Exhibits SK– 2, SK– 3 and SK– 7’ should be struck  out of the record at the first instance and on a preliminary, together with paragraphs 11 of the Petition, Paragraphs 12, 13 and 23 of the Replying Affidavit in support of the Petition. Effectively, this will render the petition unsupported and therefore incompetent.

20.   It is urged by the 3^rd and 4^th Respondents that the Dominant Cause of Action in this Petition is employment. In Support whereof reliance is placed in a decision by Justice Korir in the case of Honey Creepers Investments Limited vs. Cab Investments Company Ltd & 4 others [2020] eKLR where the Honourable Judge discussed the concept of a “dominant cause of action” and distinguished it from a pure cause of action over land and a cause of action over land with allegations of constitutional violations. He concludes that where land rights issues dominate a Cause, then the same should be filed before the Environment and Land Court. It is urged he rightly holds that in case any constitutional questions arise in that Cause, then that seized Court is the right forum to determine them.

21.   In the instant Petition, the Petitioner through prayer 1 to 4, in the Petition, seeks to interdict the appointment of the 1^st Respondent by inviting this Court to find fault in the process of his appointment which includes the approval of the same by the National Assembly.

22.   It is of paramount importance to note that the factual basis of the Petition, as captured at paragraph 7 to 11 & 15 are concerned with the statutory qualifications of the holder of the position of the Chief Executive of the NGCDF Board, his/her appointment and his/her statutory functions.

23.  I note the prayers sought as read with paragraphs 7 to 11 and 16 of the Petition points out to a cause of action that is predominantly an employment and labour matter.

24.  The 3^rd and 4^th Respondents on issue of jurisdiction referred to the celebrated case of The Owner of Motor Vessel Lillian “S” v. Caltex Oil Kenya Limited 1989 KLR 1653 where the Court of Appeal held as follows:-

“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 its tools in respect of the matter before it the moment it holds the opinion that it has no jurisdiction.”

25.   A quick review of the Petition clearly show that the Petition discloses a cause of action that should by law be placed and determined by the Employment and Labour Relations Court. I find from the pleadings herein that this Petition belongs to the Employment and Labour Relations Court on account that the dominant cause of action entails the retention of the 1^st Respondent. This can be deciphered from the Orders sought and the facts pleaded.

26.  On issue of the transfer the 3^rd and 4^th Respondents places reliance in the case of Honey Creepers Investment Limited case, (supra) where the learned Judge also made a substantive finding that the Court, as a consequence, lacked the requisite jurisdiction to transfer the incompetent Petition to the Court with the requisite jurisdiction, which in that case was the Environment and land Court. Inter alia Justice Korir relied on the Court of Appeal decision in Equity Bank Limited v. Bruce Mutie Mutuku t/a Diani Tour & Travel (2016) eKLR, the High Court decision in Republic vs. Chief Land Registrar & another (2019) eKLR and Delmonte Kenya Limited vs. County Government of Murang’a & another (2019) eKLR where the Courts reached a similar decision. The Learned Judge quotes, and agrees with, Justice Mativo that:-

“…the jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2)(b) of the Constitution and Section 13 of the Environment and land Court Act. In this regard, my view is that the intention of the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. My strong view is that this suit ought to have bene transferred to the proper court the moment the Constitution of Kenya 2010 divested this Court the jurisdiction to hear the case. Buttressed by the provisions of the Constitution and Section 13 of the Environment and Land Court Act, I am clear in my mind that his Court cannot properly entertain the application before me. … Even with that clear-cut jurisdictional demarcation on paper, sometimes matter camouflaged in what may on the surface appear to be a serious constitutional issues or Judicial Review applications or other matters falling in other High Court division may, on a closer scrutiny reveal otherwise – that the germane of the application is actually a labour dispute or land issue falling squarely in the forbidden sphere of the specialized courts! Such is the nature of the application before me. A boundary dispute or enforcing an order relating to a boundary dispute falls squarely in the forbidden sphere of the specialized courts, namely, the Environment and Labour Court. The drafters of the Constitution were very clear on the limits of this Court’s jurisdiction and the jurisdiction of the Courts of equal status.”

27.  Further reliance is placed in the Court of Appeal holding in Equity Bank Limited vs. Bruce Mutie Mutuku t/a Diani Tour & Travel (Supra), that where a case is placed before the wrong Court, the same is incompetent. Further that, it cannot be redeemed through a transfer of the same to the right court, to do so would be to muddle up the waters and allow confusion to reign. He also concluded that it is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where Court lacks jurisdiction, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a Court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer. 

28.  Similarly in Phoenix of E.A Assurance Company Limited vs. S. M. Thiga t/a Newspaper Service [2019] eKLR the Court of Appeal at paras. 19 and 20, reaffirmed in the following words the right position of the law – in respect to suits filed before Courts which have no requisite jurisdiction:-

“We are not persuaded that the proposition by the Respondent is correct in law. Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is field without jurisdiction, the only remedy is to withdraw it and file a complaint one in the Court seized of jurisdiction. A suit field devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The Subordinate Court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction…”

29.   Equally the Supreme Court of Kenya in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) & Maurice Munyao &  148  others (suing on their own behalf and on behalf of the Plaintiffs). Petition No. 3 of 2016 also reached the conclusion that suits filed before Courts without jurisdiction, the courts have no powers to transfer the same to courts of competent jurisdiction. 

30. The 3^rd and 4^th Respondents in addition to submissions to the extent that paragraphs 23 of the Petitioner’s affidavit in support of the Petition, irregularly introduces; and uses public documents as evidence of the alleged violations, the same paragraphs ought to be struck out of the record at the first instance and on a preliminary, together with the entire Exhibits SK– 2’, ‘SK– 3’, ‘SK– 5’ and ‘SK– 7’. Specifically, on the account that, the production of the Exhibits:-

i.    It violates the Parliamentary Powers and Privileges (No. 29 of 2017) as read interpreted by this Court in Baseline Architects Limited & 2 others  vs. National Hospital Insurance Fund Board Management (2008) eKLR and the Industrial Court decision in Leland I. Selano vs. Intercontinental Hotel (2013) eKLR. the National Assembly Speaker must consent to the use of Parliamentary Proceedings as evidence.

ii.  Violates Section 80 and 81 of the Evidence Act,

iii. The source of the Exhibits has not been disclosed, consequently, their production is in violation of trust and confidentiality of public documents. Their production borders misconduct and is proscribed by the Public Officers Ethics Act, 2003. Specifically, Section 11(2) (c) thereof which provides that “…a public officer shall not for personal benefit of himself or another use or allow the use of information that is acquired in connection with the public officer’s duties.”

iv.   The production of the listed documents violates the Respondents’ right to fair hearing as enunciated by Article 50 of the Constitution.

31.  To buttress the aforesaid reliance is placed in the pronouncement  of the Court of Appeal in respect to the production  and use public documents as evidence, in the case of Okiya Omtatah Okoiti & 2 others vs. Attorney General & 3 others (2014) eKLR, as upheld by the Court of Appeal in Okiya Omtatah Okoiti & 2 others vs. Attorney General & 4 others (2020) eKLR where it was held thus:-

“a. That a Constitutional Petition cannot be founded on alleged “Public documents” obtained and produced in breach of the Constitution of Kenya, 2010, the Evidence Act, Chapter 80 Laws of Kenya, and the Cross Petitioner / 2^nd Respondent’s constitutional right to a fair hearing and fair administrative action.

b) That a Constitutional Petition cannot be founded on documents whose source and or origin has not been disclosed by the Petitioner and whose authenticity therefore cannot be vouched for.

c) That the use and production of alleged “public documents” by the Petitioners herein without disclosing their source and / or authenticity is a breach of the Cross Petitioner’s right to a fair hearing as guaranteed by Section 50 of the Constitution.

32.   In considering the Petitioners Petition, it is clear that the Supporting Affidavit filed in support of the Petition is not an affidavit in law. It introduces inadmissible evidence – as the Petitioner’s evidence in support of his claim.  It is urged that the bundle of documents  referred to in paragraph 23 of the Affidavit of the Petitioner, in support of the Petition, dated 16/12/2020, identified as ‘Exhibit SK-2’, ‘SK– 3’, ‘SK– 5’ and ‘SK– 7’, are inadmissible in law as the exhibits consists – A Report of a Parliamentary Select Committee, Auditor General’s Report addressed to the National Assembly, National Assembly’s Official Report and Excerpts of the National Assembly Hansard – respectively. The rest of the Exhibits are copies of statutes. 

33.   It is evidently clear that the evidence provided by the Petitioner in support of the Petition herein is a bundle containing proceedings in the National Assembly and the Auditor General’s Report. While the National Assembly Reports are privileged, it appears that National Assembly’s Speaker’s consent has not been sought to use the Hansard and Report in Court. None of the documents has been addressed to the Petitioner. These documents by any definition they are Public Documents.  I find that pursuant to Section 80 and 81 of the Evidence Act, Cap. 80 Laws of Kenya, such documents can only be produced in Court as evidence with the authority of their custodian; and upon certification of the same by such an officer. For the sake of reference Section 80 & 81 reads as follows:-

Section 80 –

‘Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of  it on payment of the legal fees therefore, together with ta certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.’

Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section.

Section 81 –

‘Certified copies of public documents may be produced in proof of the contents of the documents or parts of the documents of which they purport to be copies.’

34.  I find and hold that on the account that the evidence, in support of the Petitioner’s claim, contained in the impugned supporting affidavit is inadmissible, it is safe to conclude that this Petition is not supported by any evidence and that this Petition is an abuse of this Court’s process.

35. To the extent of my finding, that the affidavit in support of the Petition is not independently based on any other evidence, that it is fully dependent on the impugned affidavit, the  same is generally speculative and it cannot form the basis of a constitutional claim. It cannot elicit particular answers from the Respondent and the same should be struck out at the firs instance or on a preliminary. 

36.  The law is clear that it is upon the courts to strike out a petition on concluding, on a preliminary objection, where it finds that the Petition is incompetent. Reference is support of the proposition is premised on a decision by Justice Boaz Olao in  Kenya Planters Co-operative Union Limited where it was held as follows:-

“Rule 3(8) of the Constitution (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (The Mutunga Rules) provides as follows:- “Nothing in these rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary of the ends of justice or to prevent abuse of the process of the Court.”

Such orders as are mentioned above include striking out a Constitutional Petition that amount sot an abuse of the Court process. As to what constitutes an abuse of the Court process is a matter to be determined by the circumstances of each case as there is no all-encompassing definition of the concept “abuse of process” – Benosi vs. Wiyley 1973 C. A 721… As was held in The King vs. The General Commissioner for the Purpose of Income Tax Acts for the District of Kensington Ex-parte Princes Edmond De Polignal (1917) K. B 486 At page 495, there is inherent jurisdiction of every Court to prevent an abuse of its process and it is therefore its duty to intervene and stop such proceedings that amount to the abuse of the Court process.”

37.   I find as urged by the 3^rd and 4^th Respondents the Petition herein is incompetent and an abuse of this Court process. The same is for dismissal.

38. I further find in view of the conclusion that I have come to that this Court lacks jurisdiction to hear and determine this Petition and that the Petition is incompetent. The conclusion I have come to hereinabove is sufficient enough to dispose of the preliminary objection put forward by the 1^st and 2^nd Respondents. I therefore need not proceed to consider the not proceed to consider the instances thereof as the outcome on the 3^rd Respondents Preliminary Objection sufficiently disposes of this Petition.

39.  The upshot is that this Court lacks jurisdiction to hear and determine the Petitioner’s Petition dated 16^th December 2020. The same is accordingly dismissed. Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 10TH DAY OF MARCH, 2022.

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA