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Mombosi & 449 others v CS, Ministry of Interior Co-ordination of National Government & 3 others (Constitutional Petition 2 of 2021) [2022] KEHC 13397 (KLR) (3 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 13397 (KLR)
Republic of Kenya
Constitutional Petition 2 of 2021
F Gikonyo, J
October 3, 2022
In The Matter Of Violation Of The
Constitution Of Kenya, 2010
And
In The Matter Of: Articles 1(1)(b), 1 (4)(b), 10(1)(c)
(2)(a)(b) &(c),19(1, 20,21(1),22(1)(2), 23, 27, 28, 47(1)(2),174(a)
(b)(c)(d) &(e) 232(1)(d)€And 258 Of The Constitution
Of The Republic Of Kenya, 2010
And In The Matter Of: The Fair Administrative
Action Act, Act No 4 Of 2015 Laws Of Kenya
And
In The Matter Of: National Government Co-
Ordination Act, 2013
And
In The Matter Of: The Kenya Gazette Notice
Of 21St June 2017
And
1
In The Matter Of: Ndoinyo Location Of Keiyan
Division Of Transmara West Sub-County –
Narok County
And
In The Matter Of: Transfer Of Naarolong
Sublocation In Ndoinyo Division To Kereto
Division Of Transmara West Sub-County In
Narok
And
In The Matter Of: Infringement Of The
Pettioners’ Rights As Residents Of Naarolong
Sub-Location Of Ndoinyo Location Of Keiyian
Division Of Transmara Werst Sub-County In
Narok County
Between
Samuel Mombosi & 449 others
Petitioner
and
CS, Ministry of Interior Co-ordination of National Government
1st Respondent
The Attorney General
2nd Respondent
Transmara West Sub- County Commissioner
3rd Respondent
Assistant County Commissioner Keiyan Division
4th Respondent
Judgment
Claim that public participation not conducted
1.The petitioners vide the petition dated 9TH July 2020 sought the following reliefs that;a.A declaration that the respondents’ decision of relocating Naarolong sub-location from Ndoinyo Location in Keyian Division to Kereto Division is unconstitutional and in violation of Articles 1(1)(b), 1(4) (b), 2(1), 3(1), 6(2) 6(3), 10(1), (s), 2(a) (b), 9 (c), 19(1), 20, 21(1) 22(1) (2), 23, 27, 28, 47(1) (2), 73(1), 174(a) (c) (d), 232(1), (d) (e) and 258 of the Constitution.b.A declaration be issued that the gazette notice dated 21st June 2017 is null and void.c.A declaration be and is hereby issued to quash the gazette notice dated 21st June 2017 relocating Naarolong sub location from Ndoinyo Location in Keyian Division.d.A declaration be issued against the respondents from implementing the gazette notice no. 2845 dated 21st June 2017 in respect of Kereto Division in reference to Naarolong sub-location being part of Kereto Division.e.That the respondents bear the cost of the petitioners’ costs or in the alternative each party bears their own costs.f.Any other reliefs that this honourable court may deem just and fair to order.
(2)The petitioners are residents of Naarolong sub-location of Ndoinyo location in Kieyan Division. Their gravamen as set out in the petition dated 9th July, 2020 and the supporting affidavit sworn by SAMWEL MOMBOSI is that; the decision by the respondents to relocate Naarolong sub-location of Ndoinyo location from Keiyian Division to Kereto Division contained in Gazette Notice number No. 2845 dated 21st June, 2017 is unconstitutional for it violates articles 1(1)(b), 1(4)(b), 2(1), 3(1), 6(2) & (3), 10(1)(s), 2(a)&(b), 9(c), 19(1), 20, 21(1), 22(1)&(2), 23, 27, 28, 47(1)&2, 73(1), 174(a)(c)&(d), 232(1)(d)&(e), and 258 of the Constitution.
(3)The specific complaint is that the alteration of boundaries which relocates Naarolong sub-location from Kieyan Division to Kereto Division was done: -a)Without consulting the residents of the affected sub-location;b)Without conducting public participation or seeking the views of the residents on their willingness for the sub-location to be moved to another Division;c)Without taking into account that the residents of the affected sub-location get government services from Enoosaen Centre, the Headquarter of Keiyan Division which is nearer to the sub-location compared to Kereto Division which is very far;d)Without taking into account that the people of the affected sub-location are of the same clan as those of Kiikat sub-location with whom they share common interest socially and economically. Moving them to another Division will be an act of separating clansmen, thus, an infringement of their economic and cultural rights;e)That the roads from the affected sub-location to Kereto Division are impassable and the route is infested with bandits who attack road users frequently. The people of Kereto Division are from a different clan-siria clan- with whom they had visibly explosive tensions in the past over administrative boundaries. There was a court case on the matter. Therefore, moving the affected sub-location there is unsafe.f)That in addition, there are two large rivers between the affected sub-location and Kereto Division; the rivers burst banks making cutting communication between the two places. Such would be subjecting them to unnecessary inconveniences
(4)These grounds were adumbrated in their written submissions. They argued that no reasonable steps were undertaken to involve the people of the affected sub-location and the community thereto, yet, they are the people who are to be affected by this decision. They said that the decision affected them; immediately it was made, they were not able to receive government services from Keiyan Division for they now belonged to another Division. They also foresee a dilemma; that by this decision, the administrator of Ndoinyo location will be required to receive mandate from two assistant County Commissioners, that is, Keiyan Division and Kereto Division. According to them, the decision is unlawful for the reasons they have pointed out. In addition, they stated that the decision did not adhere to requirements of fair and lawful administrative action envisioned in article 47 of the Constitution, thus, unlawful. By this decision the respondents violated the Constitution, Bill of Rights, leadership and integrity principles. In the upshot, they submitted that the decision violates the rights of the residents of Naarolong sub-location.
Analysis And Determination
A disclaimer
(5)The decision of the court is based entirely on the material provided and facts disclosed by the petitioners. The respondents, did not file any papers despite service of pleadings and notices for hearing of the petition, and much indulgence by the petitioner and the court. At some stage, the Attorney-General intimated to the court that they are considering amicable settlement after consultation with the parties in these proceedings. Nothing important came to the fore. Nevertheless, I will consider the merits of the case.
Claim: Public participation was not conducted
(6)It bears emphasizing, the major complaint in this petition is that the decision to relocate Naarolong sub-location of Ndoinyo location from Keiyan Division to Kereto Division was done without public participation of or consultation with the residents of the affected sub-location, and therefore unconstitutional and unlawful.
Constitutional context
(7)Public participation is one of the fundamental values and principles of governance which guide exercise of public power by state officers and institutions. See Article 10 of the Constitution which provides as follows: -
(8)Similarly, it is a requirement of law and the Constitution that, a person whose right or fundamental freedom has been or is likely to be adversely affected by an administrative action taken by the government or state organ, has the right to be given written reasons for the action. See Article 47 of the Constitution which provides: -
(9)These provisions occupy a place further up in the order of justification of exercise of public power. They are always speaking of legality of actions in exercise of public power not to depend on a state officer or institution of authority having taken and conveyed an executive decision, but on whether the values and principles laid down in the Constitution for the taking of such action have been complied with. Thus, it is ominous attempt to defend a less austere version to the model sculptured in the Constitution, inter alia, in the National Values and Principles of Governance, and the right to fair administrative action - article 10 and 47 of the Constitution, respectively-; doing so, not only weakens the notion of legality of actions by state officers or institutions in exercise of public power, but thoroughly violates the Constitution. The command of the Constitution is compliance with these values and principles of governance by all State organs, State officers, public officers and all persons whenever any of them—
[10]No lesser measure is expected of implementing institutions or persons in the enforcement, promotion and protection of the Constitution. Within the raging current debate on judicialization of politics, posterity will pronounce its calm and impartial decision; that decision will, I firmly believe, place persons who anchor their actions, and jurisprudence on the Constitution, in eminent chairs of Galileo, and Locke et al.
The impugned decision by Cabinet Secretary
(11)The gazette in issue was issued by the Cabinet Secretary for Interior and Co-ordination of National Government pursuant to powers conferred upon him by section 14(1) and (3) of the National Government Coordination Act. Section 14(1) and (3) of the Act provides: -
(12)The objects of the Act are stated in Section 3 as follows: -
(13)Exercise of the functions under the Act is subject to the National Values and Principles of Governance in article 10 of the Constitution. See express provision on this in Section 4 of the said Act thus: -
4.Guiding principles
Was impugned action in accordance with Constitution?
(14)The critical question is: Whether within the foregoing framework, was the decision by the respondents to relocate Naarolong sub-location in Ndonyo location from Keiyian Division to Kereto Division in accordance with the National Values and Principles of Governance especially public participation?
6Understanding public participation
(15)understanding public participation as a concept and fundamental principle of governance, may present little difficulties. But its application and scope, is most problematic; yet, it is one of the fundamental requirements in the exercise of public power under the Constitution, and has been used to determine watershed cases on public-policy questions and monumental heavily political undertakings and controversies in Kenya. Of great significance is that, judicial pronouncements and other eminent writings continue to grow the concept of public participation; nature, application and scope. For instance, Odunga J in the case of ROBERT GAKURU & OTHERS vs. THE GOVERNOR OF KIAMBU & 3 OTHERS [2014] eKLR cited and discussed in relevant detail a string of relevant case law on public participation. I am content to cite Odunga J. of public participation: -
(16)Accordingly, although public participation may not be measured with mathematical precision, the different methods, mediums and fora employed to attain it should be effective and efficient in publicizing, communicating and educating the public on the nature, content, intent, purpose and objects of the proposed action or activity or law or policy decision in a manner that enables the public to make an informed decision or contribution on the subject. The ultimate goal is to ensure that the people are involved in the entire process from formulation to validation for, to execution. A public decision arrived at in a process devoid of meaningful involvement of the people is tinctured with and is deadly poison; the legitimate antidote the law will administer is for the court to declare such decision to be unconstitutional, null and void.
Applying the test
(17)The petitioners’ specific complaint is that, whereas the executive may alter administrative boundaries, relocation of Naarolong sub-location of Ndoinyo location from Kieyan Division to Kereto Division was done: -a)Without consulting the residents of the affected sub-location;b)Without conducting public participation or seeking the views of the residents on their willingness for the sub-location to be moved to another Division;c)Without taking into account that the residents of the affected sub-location get government services from Enoosaen Centre, the Headquarter of Keiyan Division which is nearer to the sub-location compared to Kereto Division which is very far;d)Without taking into account that the people of the affected sub-location are of the same clan as those of Kiikat sub-location with whom they share common interest socially and economically. Moving them to another Division will be an act of separating clansmen, thus, an infringement of their economic and cultural rights;e)That the roads from the affected sub-location to Kereto Division are impassable and the route is infested with bandits who attack road users frequently. The people of Kereto Division are from a different clan-siria clan- with whom they had tensions in the past over administrative boundaries. There was a court case on the matter. Therefore, moving the affected sub-location there is unsafe.f)That in addition, there are two large rivers between the affected sub-location and Kereto Division; the rivers burst banks cutting communication between the two places. Such would be subjecting them to unnecessary inconveniences
(18)Some of the complaints set out above are sensational. Others are quote plausible and rational, and legitimate expectations. Be that as it may, the aim is to demonstrate the importance of engaging them in any alteration of administrative boundaries, for the effects to their social and cultural infrastructure, economic engagement as well as provision of government service.
(19)This era of justification of exercise of public power; a must is compliance with the conditions set out in the Constitution inter alia in article 10 and 47 of the Constitution. Alteration of administrative boundaries is a public venture and an administrative action which must adhere to the national values and principles of governance as stated in section 4 of the Act. The petitioners have shown, on the material before the court, that the respondents acted with fiat and merely gazetted alteration of the boundary in question without taking reasonable steps to and involve the people of the affected sub-location and the community thereto, yet, they are the people who are to be affected by this decision. They have also demonstrated that the decision affected them; for, immediately it was made, they could no longer receive government services from Keiyian Division for they now belonged to another Division. They have also shown that Keiyian Division is closer to them and convenient for purposes of service delivery than Kereto Division. There is no specific or compelling reason or interest shown by the respondents that the alteration of the administrative boundary in question is necessary for purposes of quick delivery of services to the people or for ease of administration of the sub-location.
[20]In the upshot, I find and declare that the alteration of boundary whose effect is to relocate Naarolong sub-location of Ndoinyo location from Keiyian Division to Kereto Division was done arbitrarily and without public participation in contravention of article 10 of the Constitution of Kenya, and therefore unconstitutional. In consequence thereof, I quash, but only that part of Gazette Notice Number No. 2845 dated 21st June, 2017 which places Endonyo Narok location under Kereto Division for being unconstitutional, null and void. For the avoidance of doubt, as the gazette notice in question relates to other administrative units, this decision does not relate to or affect alteration of any other administrative area covered by the gazette notice in issue except the one placing Endonyo Narok location under Kereto Division.
(21)All other reliefs sought which has not been specifically and expressly granted is deemed to be denied.
(22)Given this is public litigation, I order each party to bear own costs of the petition. It is so ordered.
DATED AND DELIVERED AT KILGORIS THIS 3RD DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS ONLINE APPLICATION----------------------------------F. M. GIKONYOJUDGEIN THE PRESENCE OF:Mr. Miruka for PetitionersMs. Betty Mwanzao for the Respondents – absentMr. Meingati for the Interested Party – absentMr. Kasaso - CA
