1.The petition dated 29th July 2021 was filed under the Constitution for the alleged contravention of Articles 1, 3, 10, 27(1)(2)(4)&(5), 35, 47, 73 and 258 (6) of the Constitution. The petition seeks the following orders:
The Petitioner’s case
2.The petitioner’s case is supported by its Secretary General, Michael Ouma Odero’s affidavit of even date and a supplementary affidavit dated 18th February 2022. The case is that the respondent’s Nutritionists and Dieticians (Training Institutions) (Fees) Regulations, 2019 are unlawful for their failure to comply with the Constitution and the law.
3.He informs that the petitioner is a registered Union with over 2000 members who comprise of nutritionists and dieticians. He deposes that on or about May 2021, the respondent in violation of the constitutional requirement of public participation from the petitioner’s members’, published the Nutritionists and Dieticians (Training Institutions) (Fees)Regulations, 2019 dated 9th December 2019 vide Legal Notice No.216 published in a Gazette Notice Vol.CXXII – No.16 dated 24th January 2020.
4.He notes that the alleged forums convened to discuss the Regulations, were not actual public participation forums and the subject of discussion in the forums did not include discussion of the impugned Regulations. In particular he pointed out that the meeting dated 24th May 2018 held at Pwani University was a Special General Meeting that focused on reports of the Chief Executive Officer and election of the acting Chairperson. Similarly the meetings held on 31st August 2018, 19th January 2019 and 22nd January 2019 discussed like matters whose content did not contain a discussion of the impugned Regulations.
5.He asserts that the petitioner’s members were not given prior notice of the respondent’s intention to publish the impugned Regulations, He adds that they were not consulted nor their views taken into consideration prior to the Regulations being published. Being an administrative decision on the part of the respondent, he avers that its members’ were not given reasons for the decision made in line with the dictates of the Fair Administrative Actions Act.
6.He further asserts that the impugned Regulations are inconsistent with the preamble of the Nutritionists and Dieticians Act No. 18 of 2007 which informs that the Act was enacted to ensure that nutritionists and dieticians effectively participate in matters relating to their industry. He stresses therefore that it was incumbent on the respondent to ensure participation of the petitioner’s members in compliance with Article 10 and 47 of the Constitution before enacting the Regulations.
7.It was likewise averred that the impugned Regulations were also prejudicial as they provide punitive and oppressive charges for services rendered to the petitioner’s members. He deposes that this has resulted in 2205 of the petitioner’s members being deregistered owing to the respondent’s decision made on 3rd July 2020. The said members have been rendered incapable of earning a living, causing them hardship and suffering. He further states that the petitioner’s members who fail to pay fees or penalties for the various services rendered by the respondent will not be able to access these services whatsoever.
8.In the supplementary affidavit, in addition to reiterating the assertions in his supporting affidavit avers that the petitioner by dint of Article 22 and 258 of the Constitution and Section 14(1)(e ) of the Labour Relations Act has the necessary locus standi to institute this suit as the Trade Union that represents nutritionists and dieticians. He further asserts that the respondent’s replying affidavit is incompetent and incurably defective and as such should be struck out.
The Respondent’s case
9.The respondent in response to the petition filed a replying affidavit dated 1st December 2021 as sworn by its Chief Executive Officer, Dr. David Okeyo. He informs that the respondent as established under the Nutritionist and Dieticians Act has the authority to provide for the regulation of the standards and practices of the profession.
10.He avers that the petitioner has no locus standi to institute this suit as it does not represent the purported over 5000 professional nutritionists and dieticians. He points out that there was no authorization from the alleged professionals for it to act on their behalf. Further that the petition was filed without authority of the registered members of the respondent.
11.He additionally deposes that the petitioner in its annextures included names of persons who had not consented to being part of this suit. Likewise, it is stated that the suit was filed without a valid resolution of the members. Similarly, that the petitioner has not shown that the persons named in the petition are members of its union.
12.He deposes that contrary to the petitioner’s allegation the respondent conducted the public participation exercise across the Country with the aim of acquiring views and comments on the proposed Nutritionists and Dieticians (Training Institutions) (Fees) Regulations, 2019. He asserts that during the consultative public participation sessions members of its profession supported the proposed training fees.
13.He asserts that the petitioner’s Secretary General was in attendance in the consultative meetings and was even granted an opportunity to address its views in the forums. He avers that since the respondent duly conducted public participation it cannot be blamed if the petitioner and its members failed on their part to participate in the process. Equally, he states that the petitioner never raised any objection since 2019 hence the petition is an afterthought. Correspondingly he avers that the petition has been brought in bad faith since it is clear that the respondent complied with the law.
14.He further depones that the Nutritionists and Dieticians Act, 2007 under Section 24 allows for removal of non-compliant professionals from the register. It is also noted that deregistration of its professionals is in line with Section 19 of the Act. He informs therefore that prior to the deregistration of these professionals the respondent issued a notice and warning of the deregistration in the standard newspaper vide its publications dated 8th September 2017, 16th August 2019, 16th May 2019, 19th February 2020 and 25th June 2020. On top of this, the respondent sent out mass SMS to the members. In the end all the professionals who had failed to comply by 30th June 2020 were deregistered on 3rd July 2020 by an Order of the Council.
15.He makes known that some of the professionals who had not complied and as a result deregistered have since re-applied and paid the requisite charges to have their names re–registered. Further that all those that made commitments in writing have since been restored. Considering this, he depones that it is clear the petition lacks merit since the respondent carried out its mandate in compliance with Article 10 and 47 of the Constitution.
The Petitioner’s submissions
16.The firm of Litoro and Omwebu Advocates on behalf of the petitioner filed written submissions and list of authorities dated 21st April 2022. Counsel identified the issues for determination as:
17.On the first issue counsel submitted that the replying affidavit was incompetent and incurably defective for the reason that the respondent had failed to mark the annexures to its affidavit as required under Rule 9 of the Oaths and Statutory Declarations Rules. To buttress this point reliance was placed on the case of Francis A. Mbalanya v Cecilia N. Waema  eKLR where it was held that it is trite in law that an affidavit and the annextures attached on it constitute evidence. Indeed, where a person seeks to proof a fact by way of affidavit, he is obligated to exhibit any document on his affidavit. The failure to comply with that law, can only lead to striking out of the offending documents.
18.Similar dependence was placed on the case of Jeremiah Nyangwara Matoke v Independent Electoral and Boundaries Commission & 2 others  eKLR. Counsel as such asserted that the exhibits to the replying affidavit ought to be expunged from the record and further that the defect cannot be cured by Article 159 of the Constitution.
19.On the second issue, Counsel submitted that the petitioner being the duly registered Union of Professional Nutritionists and Dieticians, has the necessary locus standi to institute this suit. In support reliance was placed on the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance and 5 Others (2014) eKLR where it was held that Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the Courts, contesting any contravention of the Bill of Rights, or the Constitution in general. Akin reliance was placed on the cases of Haki Na Sheria Initiative v Inspector General of Police and 2 others (2015) eKLR and Priscilla Nyokabi Kanyua V Attorney General & Another  eKLR.
20.On the third issue, Counsel submitted that the making of the Nutritionists and Dieticians (Training Institutions) (Fees)) Regulations, 2019 did not constitute public participation hence unlawful in light of Article 10 of the Constitution. He cited the case of Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others  eKLR where it was held that a public participation programme, must show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or public official must take into account the subsidiarity principle that is those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.
21.Comparable reliance was placed on the case of Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others  eKLR. Counsel stressed that being that the petitioner’s members would be most affected by the dictates of the impugned Regulations it was mandatory on the part of the respondent to involve them and have them participate in the process.
22.Counsel submitted that the respondent had failed to produce any cogent evidence to prove that it actually conducted public participation in respect to the impugned regulations and that the alleged public participation exercise met the set threshold for sufficient public participation. He added that the respondent’s actions had infringed on the petitioner's fundamental rights as set out under Articles 10, 47, 24, 27, 73(1)(a) and 75(1)( c) of the Constitution and Sections 4 and 5 of the Fair Administrative Actions Act.
23.To that end Counsel relying on the case of Senate of the Republic of Kenya & 4 others V Speaker of the National Assembly & another; Attorney General & 7 others  eKLR submitted that an invalid action is invalid ab initio. He urged the Court to allow the petition.
The Respondent’s submissions
24.The respondent filed written submissions and a list of authorities dated 10th May 2022 through the firm of Kwamboka Marie and Associate Advocates who identified the issues for determination as:
25.On the first issue, counsel while relying on the averments in the respondent’s replying affidavit submitted that the petitioner lacks the requisite locus standi to institute this suit. It was also pointed out that the petitioner had not adduced any evidence to show that the members it had listed were indeed members of its Union and that it had received authorization to institute these proceedings on their behalf. Counsel argued that in this regard the burden to prove this allegation lies on the petitioner as held in the case of Raila Odinga and others v IEBC (Petition No.5 of 2013).
26.In support of this issue, counsel cited the case of Republic v Registrar of Societies ex parte Narok Muslim Welfare Association (2017) eKLR where it was held that it is important to appreciate that the lack of capacity to sue and be sued is a weighty matter that goes to the root of the validity of the proceedings before Court hence lack of legal capacity is grave. Also see (i) Nation Media Group Limited V Cradle the Children’s Foundation CA No.149 of 2013 (ii) Alfred Njau and 5 others v City Council of Nairobi (1983) eKLR.
27.On the second issue, Counsel referring to the respondent’s affidavit submitted that the allegation that there was no public participation was a misrepresentation of the facts as the respondent had duly conducted public participation in compliance with the law before enacting the impugned Regulations. This was said to be evident from the stakeholder meetings held on 15th April 2018, 23rd April 2019, 30th April 2018, 15th January 2019 and 2nd May 2019.
28.Counsel relied on the South African case of Minister of Health and another v New Clicks South Africa (Pty) Ltd and Others (CCT 59/2004)  ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) where it was held that the forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. Akin reliance was also placed on In the matter of Mui Coal Basin Local Community (2015) eKLR.
29.On the final issue, Counsel submitted that the respondent issued a notice and warning to the professionals regarding the effects of the Regulations on their registration status on diverse dates as published in the standard newspaper on 8th September 2017, 16th August 2019, 16th May 2019, 19th February 2020 and 25th June 2020.Additionally, the respondent sent out mass SMSs to its members to inform them of this.
30.This decision is submitted to be in line with the respondent’s mandate under Section 19 and 24 of the Act. In view of this Counsel submitted that the respondent had adhered to the provisions of Article 10 and 47 of the Constitution. She argued that the petitioner had not clearly demonstrated what provisions of the Constitution had been violated by the respondent by carrying out its mandate.
31.To that end Counsel submitted that the petition was devoid of merit and brought in bad faith. She argued the court to dismissed the petition with costs.
Analysis and determination
32.From the parties’ pleadings and submissions, it is my view that the issues that stand out for determination are as follows:Whether the petitioner has the requisite locus standi to institute this suit.
33.The respondent herein challenged the petitioner’s legal standing to file this suit. The respondent in this regard asserted that the petitioner had not received authorization from the purported professionals to file the suit. Further that the suit had been filed without a resolution from the members. Equally that it had failed to show whether the persons listed in the petition were its members. The petitioner opposed this stressing that its authority to approach this Court is grounded under Article 22 and 258 of the Constitution.
34.The Court of Appeal discussing the issue of locus standi in the case of Randu Nzai Ruwa & 2 others v Secretary, the Independent Electoral and Boundaries Commission & 9 others  eKLR held as follows:
35.As can be appreciated from the pronouncement of the upper courts, the scope of locus standi is wide. The petitioner in the instant suit alleged that it lodged this petition on behalf of its members as the trade union for the nutritionists and dieticians. This is because the respondent had implemented the Nutritionists and Dieticians (Training Institutions) (Fees) Regulations, 2019 in violation of the Constitutional principles and the law.
36.It is noted that the petitioner in its supporting affidavit and supplementary affidavit demonstrated that it is a duly registered Union for the nutritionists and dieticians in Kenya. The Constitution under Article 22(2)(d) makes known that an association acting in the interest of one or more of its members has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been violated. It is my humble finding that the petitioner capably lodged this suit as it has the necessary locus standi to do so.Whether the respondent’s replying affidavit dated 1st December 2021 is incompetent.
37.The petitioner in its supplementary affidavit dated 18th February 2022 asserted that the respondent’s replying affidavit was incompetent and incurably defective for the reason that it had failed to mark the annexures to its affidavit as required under Rule 9 of the Oaths and Statutory Declarations Rules. The respondent did not make a response to this or submit on the same.
38.Rule 9 of the Oaths and Statutory Declarations Rules states as follows:
39.The legal basis for this rule is that an affidavit and the annextures attached to it constitute evidence. Considering this, where a person seeks to proof a fact by way of affidavit, he is obligated to exhibit any document on his affidavit to support his case. Consequently, before a Court can receive such a document in evidence, the law provides that such a document must be sealed by the Commissioner for Oaths and marked with serial letters.
40.The effect of the failure to comply with Rule 9 of the Oaths and Statutory Declarations Rules has been discussed severally. In the case of Jeremiah Nyangwara Matoke(supra),the Court citing a number of authorities with approval observed as follows:
41.In like manner the Court in the case of Chris Munga N. Bichage & 2 others v Independent Electoral & Boundaries Commission & 2 others  eKLR opined as follows:
42.A perusal of the replying affidavit’s annextures discloses that indeed they were not securely sealed under the seal of the commissioner and were not marked with serial letters of identification.
43.It should conversely be appreciated that the replying affidavit was made in compliance with the law. I say so because an affidavit must clearly state the place and date where it was made and it must be made before a Magistrate or a Commissioner for oaths. The making of an affidavit is governed by the Oaths and Statutory Declarations Act. Section 5 of the Act provides as follows:
44.It is abundantly clear that the replying affidavit is legally sound in substance. The contention is only in its form. This means that the replying affidavit cannot be deemed to be incompetent and defective as it complied with the rules of making an affidavit. The form of the replying affidavit being its attendant annextures in support of the respondent’s case is however defective and as such cannot hold water in the context of this case.
45.As pronounced in the numerous authorities, such annextures are not admissible and as a consequence are customarily struck out from the Court record. It is worthy to mention that the Court of Appeal in the case of Bank of Africa Limited v Juja Coffee Exporters Limited & 4 others (2018) eKLR guided as follows in such circumstances:
46.The Court as such held as follows:
47.It is regrettable in the circumstances of this case that the respondent failed to respond to this grave component after the petitioner filed its supplementary affidavit. This is because once the petitioner alleged that the replying affidavit was incompetent due to its annextures, the respondent whose case is dependent on proving it’s compliance with the law would have seen the need to make a response or even sought leave to file a supplementary affidavit attaching the said annextures in compliance with Rule 9 of the Oaths and Statutory Declarations Rules.
48.Failure to plead its case in this regard for this Court’s consideration ties this Court’s hands in view of exercising its discretionary power as guided by the Court of Appeal in consideration of Article 159(2)(d) of the Constitution. Bearing this in mind, I find that the replying affidavit is competent contrary to the petitioner’s allegation. On the other hand, I find that the annextures attached to the replying affidavit as adduced in Court are incompetent for their failure to comply with Rule 9 of the Oaths and Statutory Declarations Rules. As a consequence the exhibits are hereby expunged from the court record.Whether the respondent conducted public participation before enacting the Nutritionists and Dieticians (Training Institutions) (Fees) Regulations, 2019
49.The petitioner’s key contention is that the respondent prior to enacting and implementing the Nutritionists and Dieticians (Training Institutions) (Fees) Regulations, 2019 failed to observe the principle of public participation. It pointed out that the claim by the respondent that it conducted public participation was false as the meetings held concerned other matters. It was stressed that the implementation of the impugned Regulations was never a topic of discussion for the stakeholders.
50.The respondent opposed this assertion arguing that it had duly conducted public participation in compliance with the law before enacting the impugned Regulations. In particular the respondent pointed to the stakeholder meetings held on 15th April 2018, 23rd April 2019, 30th April 2018, 15th January 2019 and 2nd May 2019 in this regard.
51.As discussed in the previous issue, the lack of valid annextures to the respondent’s replying affidavit ultimately renders the replying affidavit incomplete. This is because the respondent’s case is anchored on proving that it complied with the law. This as can be discerned is through the adduced evidence which has since been determined to be incompetent.
52.Nevertheless the Supreme Court in the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others  eKLR held as follows in view of such circumstances:
53.Manifestly, the lack of evidence in the respondent’s case does not automatically make the petitioner’s case merited. This Court as guided by the Supreme Court is obliged to interrogate the facts of the case against the law on the public participation principle.
54.The Court of Appeal speaking to the importance of public participation in the case of Legal Advice Centre & 2 others v County Government of Mombasa & 4 others  eKLR stated as follows: -
55.Public participation is a key element in the legislative functions at all levels. This was appreciated in the case of Republic v County Government of Kiambu Ex parte Robert Gakuru & another  eKLR where the Court held that:
56.Following an interrogation of the facts of this case as deposed by the petitioner and respondent, a number of things stand out. The respondent in its averments in the replying affidavit stated that it had held a variety of meetings with the stakeholders however failed to specify whether the substance of the meetings was discussion of the impugned Regulations. Further in its affidavit, the respondent did not state when the advertisements or notices of exercise were made, when the comments and suggestions were to be received and when the stakeholder meetings would be held.
57.I take note that other than calling for meetings, the existence of the element of public participation is made manifest in the following manner as provided under Section 5 of the Statutory Instruments Act, Act No. 23 of 2013:Consultation before making statutory instruments
58.Further Section 5A of the provides as follows:Explanatory memorandum
59.The petitioner argued that the meetings referred to were the usual Annual General Meetings and Special Annual meetings as seen from the pages 37 and 38 of the petitioner’s supplementary affidavit. The respondent also made general averments as to the meetings it held with regard to fulfilling the principle of public participation.
60.I perceive this to go contrary to the principles of public participation under the law which requires clarity on the call to participate and the topic of discussion so that the relevant person can participate meaningfully. In addition this goes against the principles stipulated by the Supreme Court in the case of British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties);Mastermind Tobacco Kenya Limited (The Affected Party)  eKLR as follows:1.It is my considered view in light of these facts that the respondent did not uphold the principle of public participation before enactment of the Nutritionists and Dieticians (Training Institutions) (Fees) Regulations, 2019. Inevitably, the lack of compliance with the public participation principle obviously renders the impugned Regulations unconstitutional.2.The upshot of the foregoing conclusion and for the reasons set out above, I find that the petition dated 29th July 2021 has merit and is hereby be allowed and the prayers (i), (ii) & (iii) as set out in paragraph 1 of this Judgment are granted, with costs to the petitioner.