The Petitioner’s case
3.The petition is supported by the petitioner’s supporting affidavit of even date, a supplementary affidavit dated 18th November 2021, and an undated further affidavit in opposition and response to the 1st, 2nd and 3rd respondents’ responses.
4.The Supplies Practitioners Management Act’s is the legal framework that makes provision for training and registration; licensing of supplies practitioners and regulation of the supplies practitioners. The 1st respondent is established as the regulator under Section 3 of the Act and its functions being to oversee registration, regulation, education, promotion of standards and discipline for procurement and supply of chain management professionals in addition to its core functions as spelt out under Section 5.
5.The petitioner deposes that the bone of contention herein is that the 1st respondent is acting contrary to its clear functions as espoused in the Act. This is because the 1st respondent in offering training services is in direct competition with the bodies it regulates. He adds that Section 5 provides that the 1st respondent is to only make provision for training of persons seeking registration under the Act and does not in any way empower it to engage in activities which puts it in competition with the training institutes which is deemed to be in conflict with its mandate. The petitioner avers that the 1st respondent cannot therefore be impartial as the regulator. He avers that the principles of natural justice and the Constitution under Article 73(2) prohibit conflict of interest in public affairs.
6.The petitioner as well depones that the 1st respondent’s requirement that the registered professionals who are employed in procurement and supplies management within various organizations be licensed is inconsistent with its mandate under the Act. According to him the employed persons only require to be registered as members of the 1st respondent while those engaged in active business such as the consultants be licensed.
7.He further depones that not all members can afford the high costs of training offered by the 1st respondent as it demands a minimum of 48 Continuous Professional Development (CPD) points per year which is approximately Ksh.110,000 per person. Obviously failure to acquire the minimum CPD points equates to loss of membership and the license to practice the following year. From the foregoing, the argument is with such a requirement, employees who generally earn low incomes and unemployed persons cannot afford to pay for the CPD to attain the required points per year. This in effect diminishes the employability of the qualified aspiring professionals.
8.The petitioner is further aggrieved that on 8th January 2021, the 1st respondent unlawfully issued a CPD policy without adhering to the principle of public participation and parliamentary approval as provided under Articles 10(2) and 232(1)(d) of the Constitution as well as Sections 2, 4, 5 and 5A of the Statutory Instruments Act, No.23 of 2013. Further he states that the respondents made known that the Policy would act retrospectively to 2020 and account for 50% of the required points per year. The petitioner believes that this is a tactic to compulsorily force its members to attend its exorbitant CPD trainings.
9.The petitioner further deposes that the 2nd respondent recruited the 3rd respondent a person who is not a public officer to be the 1st respondent’s Chief Executive Officer. He states that this is in violation of Article 73(2)(a) of the Constitution and Sections 2 and 34 of the Public Service Commission Act, No.10 of 2017.
10.The petitioner as such brings this petition against the 1st and 2nd respondents for failing to uphold Article 3 of the Constitution. Furthermore, it’s in breach of the rule of law and good governance in violation of Articles 10 and 47(1) of the Constitution. Equally, it’s in violation of the rights of consumers to the protection of their economic interests under Articles 46(1)(c) of the Constitution.
11.In the supplementary affidavit, the petitioner makes known that on 9th November 2021, his friend who works in one of the media houses drew his attention to a discussion about the instant suit which took place on 3rd and 8th September 2021, on a WhatsApp Chat Group called ‘WANUNUZI_ke!’
12.He informs that in the discussion, Counsel for the 1st, 2nd and 3rd respondents, Mr. Mwaniki and Dr. Chama, Mr. Oyamo, and Mr. Gana deliberated on why the 1st respondent’s decision to offer training services is wrong. They pointed out that this is the mandate of the National Treasury and that it had not delegated the same to the 1st respondent. He deponed that Mr. Mwaniki argued that the 1st respondent had usurped the National Treasury’s function.
13.In view of this discussion, the petitioner depones that the pleadings placed on record in this suit by the 1st, 2nd and 3rd respondents are not merited.
The Respondents’ case
The 1st Respondent
14.The 1st respondent through its acting Chief Executive Officer, James Kaloki filed a replying affidavit dated 12th February 2021 in answer to the petition. He disparages the petition as being filed in bad faith and an attempt to deter the 1st respondent from carrying out its mandate. He informs that Sections 16 and 20 of the Supplies Practitioners Management Act mandate the 1st respondent to register and license supplies practitioners which is constitutional and legal as per Article 36 of the Constitution.
15.He avers that the 1st respondent conducts continuous professional development through in person and virtual workshops in which it exposes its members to emerging developments in legislative, judicial and practice in the supplies practice in compliance with Section 16(3) of the Act. Furthermore, with reference to Section 16(10), it is mandatory for all supplies practitioners to comply with the CPD programmes as prescribed by the 2nd respondent. That it is plain that this sub Section does not provide for prescription of the CPD by other persons and it is for this reason that the 2nd respondent issued the impugned CPD Policy.
16.He avers that contrary to the petitioner’s allegation, the CPD Policy was subjected to public participation. That the said policy is administrative in nature and not a statutory instrument within the meaning of the Statutory Instruments Act. He further states that although the 1st respondent has exclusive power to prescribe and conduct the CPD programmes, it also recognizes those conducted by its members that satisfy and possess the requisite pedagogy and knowledge of the laws and best practices that govern supply chain management. As such its members who attend the said programmes are entitled to a maximum of 50% CPD points of the required minimum.
17.On the other hand he explains that the purpose of limiting the points to 50% is to ensure that members participate in the 1st respondent's CPD programmes which are affordable and ensure it attains financial independence. He informs even so that the 1st respondent also provides free CPD programmes for its members. He refutes the claim that the law requires the 1st respondent’s CEO to be a public officer. He states that this Court by virtue of Article 162(2)(a) and 165 (5)(b) of the Constitution and the Employment and Labour Relations Act, 2011 lacks jurisdiction to entertain the question as to whether the employment of the acting CEO is constitutional or not.
18.He further depones that the petition is an abuse of public interest litigation as it was filed by Centre for Advanced Procurement Studies Limited (CAPS), International Supply Chain Solutions Limited (ISCS) and Global Procurement Academy Limited (GPA) through the petitioner with a view to harass and intimidate the respondents to abandon their statutory duty to prescribe the CPD programmes. Considering this, he states that the petition is frivolous, vexatious and an abuse of the court process and so should be dismissed.
The 2nd and 3rd Respondents’ case
19.The 2nd and 3rd respondents’ in response to petition filed their replying affidavits dated 12th February 2021. These affidavits reiterated the averments of the 1st respondent’s replying affidavit verbatim.
The 4th and 5th Respondents’ case
20.In response and opposition to the petition, these respondents’ filed two sets of Grounds of Opposition dated 22nd July 2020 and 10th May 2022 respectively. The 2nd set is a reproduction of the 1st set. These respondents’ case is anchored on the grounds that:i.The petitioner has not demonstrated how the 4th and 5th respondents have violated his constitutional rights as established in the case of Anarita Karimi Njeri vs R (1976-1980) KLR 1272.ii.According to Section 5 (a) of the Supplies Practitioners Management Act, one of the functions of the 1st respondent is ‘to establish, monitor, improve and publish the standards of the supplies practitioners’ profession and safeguard the interest of all supplies practitioners’ and so the 1st respondent developed standards to guide the CPD and Accreditation of courses offered by other institutions for award of the CPD points.iii.Section 16(10) of the Supplies Practitioners Management Act requires all supplies practitioners to comply with the CPD programmes as prescribed by the 2nd respondent. Further that Section 2 of the Public service (values and principles) Act, 2015 provides that ‘continuing professional development’ means the means by which a professional maintains their knowledge and skills related to their professional lives.iv.The Draft Continuous Professional Development (CPD) Policy and Draft Accreditation Policy were rigorously benchmarked with similar policies by other professional bodies in the country and the public was made aware of the said policy.v.Under Section 31 of the Supplies Practitioners Management Act, other persons are allowed to offer training courses or examinations with authority from the Minister and so by offering the CPD training the 1st respondent does not drive away licensed trainers out of business.vi.Section 9 of the Supplies Practitioners Management Act provides that there shall be a Chief Executive Officer of the Institute who shall be competitively appointed by the Council, whose terms and conditions of service shall be determined by the Council in the instrument of appointment and further that Section 34(1)(a) of the Public Service Commission Act 2017 provides that acting appointments shall be made by the lawful appointing authority which is the 2nd respondent and accordingly acted within its powers in appointing the 3rd respondent.vii.The petitioner has failed to demonstrate how his legitimate expectation has been breached as the conduct of the respondents does not constitute any violation of the petitioner’s rights.viii.The petition is frivolous, vexatious, incompetent and improperly before court and an abuse of the court process.
The Petitioner’s submissions
21.The petitioner filed two sets of written submissions and a list of authorities dated 18th May 2021 and 28th September 2021 respectively in support of the petition. In the first set he identified the issues for determination to be as follows:i.The petitioner’s locus standi to institute these proceedings.ii.This Court’s jurisdiction to hear and determine this case.iii.Whether the Continuous Professional Development (CPD) policy was subjected to Public Participation and enacted in violation of the Statutory Instruments Act.iv.Whether the appointment of 3rd respondent as the Acting Chief Executive Officer of the 1st respondent was invalid, null, and void.v.Whether there is a conflict of interest where the institute offers training services in competition with the entities it regulates.vi.Whether the respondents violated the petitioner’s legitimate expectations.
22.The petitioner on the first issue relying on Articles 22 and 258 of the Constitution submitted that he has the requisite locus standi to institute this suit in public interest. To buttress this point reliance was placed on the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance &and 5 others  eKLR where it was held that the promulgation of the 2010 Constitution enlarged the scope of locus standi, in Kenya. 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. He also relied on the cases of John Wekesa Khaoya V. Attorney General  eKLR, Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another  eKLR, Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others  eKLR and Trusted Society of Human Rights Alliance –Versus- Nakuru Water and Sanitation Services Company & Another  eKLR.
23.Turning to the next issue, he submitted that this Court by virtue of Article 23 of the Constitution as read with Article 165 of the Constitution has the jurisdiction to hear and determine applications for redress of a denial, violation, infringement of, or threat to a right or fundamental freedom. In support reliance was placed on the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989) KLR.
24.It was submitted on the third issue that the impugned CPD policy was issued in violation of Articles 10 and 232(1) (d) of the Constitution as it was not subjected to public participation. To buttress this point he cited the case of Kiambu County Government & 3 others v Robert N. Gakuru & others  eKLR where it was held that the issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. That the Constitution under Article 10 binds all state organs, state officers, public officers and all persons in the discharge of public functions and highlights public participation as one of the ideals and aspirations of our democratic nation. Other cases referred to are Doctors for Life International v Speaker of the National Assembly & Others  ZACC 11 and Kenya Human Rights Commission vs. Attorney General & another  eKLR, among others.
25.The petitioner further argued that the CPD policy is a statutory instrument within the meaning of Section 2 of the Statutory Instruments Act, No. 23 of 2013 yet it was enacted in a manner that did not comply with Sections 2, 4, 5, 5A, 10, 11, 12, 13 and 14 of the Act. He referred to the case of British American Tobacco Limited vs Cabinet Secretary for the Ministry of Health & 5 others  eKLR where it was held that public participation is a mandatory requirement in the process of making legislation including subsidiary legislation. The threshold of such participation is dependent on the particular legislation and the circumstances surrounding the legislation. Suffice to note that the concerned State Agency or officer should provide reasonable opportunity for public participation and any person concerned or affected by the intended legislation should be given an opportunity to be heard. Also referred are the cases of Keroche Breweries Limited & 6 Others v Attorney General & 10 others  eKLR, and Kenya Country Bus Owners’ Association (Through Paul G. Muthumbi – Chairman Samuel Njuguna – Secretary, Joseph Kimiri –Treasurer) & 8 others v Cabinet Secretary For Transport & Infrastructure & 5 Others  eKLR.
26.On the fourth issue he submitted that the 3rd respondent was irregularly and unlawfully appointed as the Acting Chief Executive Officer of the 1st respondent since he is not a public officer as provided under Section 2 of the Public Service Commission Act, No. 10 of 2017. He argued that this requirement is also reiterated under Paragraph 2 and 23 of the Public Service Commission Regulations 2020 and Section 34 of the Public Service Commission Act. The appointment was therefore deemed to be in violation of Articles 10(2)(a), 47(1) and 73(2)(a) of the Constitution.
27.In support reliance was placed on the case of Ferdinand Ndung’u Waititu v Benson Riitho Mureithi (suing on his behalf and on behalf of the general public) & 2 others  eKLR where it was held that the application of Chapter six of the Constitution to public officers, places an obligation on the appointing authority to take into account the integrity of the persons being considered for appointment as a public officer. In particular, Article 73(2) of the Constitution provides the guiding principles of leadership and integrity. Further referred to is the case of David Kariuki Muigua v Attorney General & another  eKLR.
28.He next submitted that the expression “make provision for training of persons seeking registration/licensing under the Act” does not give the 1st respondent a mandate to be a trainer itself but rather gives it the responsibility to regulate the trainers in the sector. Any provision of training by the 1st respondent causes conflict of interest. He contended that the 1st respondent could not be a neutral and objective regulator whilst competing for business with the entities it regulates. He relied on the case of Felix Kiprono Matagei v Attorney General & 3 others  eKLR where it was held that the Constitution demands impartiality of public officers under Article 232(1)(c). Where there is a real possibility of conflict of interest or of the potential of conflict of interest, then the very principles enshrined under Articles 10, 73 and 232 of the Constitution are unlikely to be met. Therefore, public officers, whose duties invite the potential of conflict of interest, are unlikely to inspire public confidence in their offices or the services they offer.
29.On violation of the petitioner’s legitimate expectations, it was submitted that the 1st and 2nd respondents violated this expectation by going against the national values and principles of governance enshrined in Article 10 and values and principles of public service enshrined under Article 232 of the Constitution. To buttress this point reliance was placed on the case of Kalpana H. Rawal v Judicial Service Commission & 4 others  eKLR where it was observed that the expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. In all instances the expectation arises by reason of the conduct of decision maker and is protected by the courts on the basis that principles of fairness, predictability and certainty should not be disregarded. Also see the case of Communication Commission of Kenya & 5 others vs Royal Media Services Ltd & 5 others, (2014) e KLR.
30.In the second set of submissions, the petitioner submitted that the 4th and 5th respondents were properly enjoined in the suit since the 4th respondent is the legal advisor of the Government while the 5th respondent is the person in charge of the parent Ministry responsible for the 1st respondent. On whether the petition meets the threshold set out in the Anarita Karimi case, it was submitted that the threshold does not constitute an absolute bar to constitutional pleadings. To buttress this point he relied on the case of Kevin Turunga Ithagi –v- Hon. Justice Fred Ochieng & others  eKLR, where the Court stated that the principles espoused and championed in the Anarita Karimi case must be applied with adequate caution to ensure deserving parties are not denied justice, or access to justice, without hearing their cases on merit. He further relied on the cases of Peter M. Kariuki v Attorney General  eKLR, and John Kipng'eno Koech & 2 others v Nakuru County Assembly & 5 others  eKLR.
31.The petitioner as well challenged the assertion that the petition was an abuse of the Court process. He argued that his pleadings presented well-reasoned and founded arguments which particularize the violations of the law and sets out the issues to be determined in the petition. To buttress this point reliance was placed on the case of Kenya Power & Lighting Company Limited vs. American Life Insurance Company (K) Limited (2015) eKLR where it was held that a pleading is frivolous if it lacks seriousness. If it is not serious then it would be unsustainable in court. A pleading would be vexatious if it annoys or tends to annoy.
32.He further referred the court to the cases of Charo Hassan Nyange vs. Mwashetani Hatibu & 3 others  eKLR , Trusted Society of Human rights Alliance Vs A.G. & Others High Court Petition No.229 of 2012 among others. Accordingly the petitioner argued that the respondents had not demonstrated how the petition is bad in law, frivolous, vexatious and an abuse of the court process. He urged the court to allow the petition with costs.
The 1st, 2nd and 3rd Respondents’ submissions
33.These respondents’ through the firm of Mwaniki Gachuba Advocates filed written submissions dated 26th May 2021 where Counsel identified the issues for determination as:i.Whether the petitioner has locus standi.ii.Whether this Court has jurisdiction to entertain the petition.iii.Whether the Continuous Professional Development (CPD) policy is unconstitutional.iv.Whether the appointment of the 3rd respondent was unconstitutional.
34.Counsel while referring to Articles 22(1) and 258(1) of the Constitution as read with Rule 4(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 submitted that the petitioner in instigating this suit had not disclosed on whose behalf the petition had been brought. Accordingly it was not clear whether the petition was on behalf of members of the 1st respondent. By the same token it was not stated why these members could not act in their own name. Likewise the petitioner did not also show whether he was acting as a member of the 1st respondent; or in the public interest; or in the interest of one or more of an association to which he belongs with reference to the subject at hand.
35.To support this point Counsel relied on the case of John Mining Temoi & Another vs Governor of County of Bungoma & 17 Others (2014) eKLR where the Court discussing the scope of Article 22 and 258 of the Constitution observed that despite the wide scope of the provisions where one purports to enforce the rights of another, there must be a nexus between the parties. Comparable reliance was placed on the case of Mwanganza L.P.O Self-Help Group v Attorney General & 3 others  eKLR and Okiya Omtatah Okoiti v Kenya Power & Lighting Company Ltd & another  eKLR.
36.In view of the above, Counsel while referring to the annexure marked “JK 5” in the 1st respondent’s replying affidavit argued that the petition was instituted on behalf of Centre for Advanced Procurement Studies Limited (CAPS), International Supply Chain Solutions Limited (ISCS) and Global Procurement Academy Limited (GPA) who are legal persons with capacity to sue and to be sued. He stressed that the petitioner had not demonstrated that he has the requisite locus standi to file this suit and so it was evident that the petition had been filed without bona fides.
37.On the second issue, Counsel answered in the affirmative. This he said is because the High Court by virtue of Article 23(1) of the Constitution and Section 5(a) of the High Court (Organization and Administration) Act, 2015 has the authority to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of rights. In support of this argument reliance was also placed on the cases of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & another  eKLR and Kenya Hotel Properties Limited v Attorney General & 5 others  eKLR.
38.On the third issue counsel submitted that a reading of Section 5(f) and 16(10) of the Supplies Practitioners Management Act informs that provision of continuous professional development services is a statutory monopoly bestowed upon the 1st and 2nd respondents. That principally, the 2nd respondent is exclusively mandated to prescribe CPD programmes while the 1st respondent is mandated to provide the continuous professional development services. He referred to the case of Eunice Nganga & another v Law Society of Kenya & another  eKLR where the Court held that members of professional bodies such as those of the 1st respondent must keep themselves abreast with new developments in the law and practice and that provision of the service by the regulatory body cannot be deemed unconstitutional. Comparable reliance was placed on the cases of Martin Wanderi & 19 others v Engineers Registration Board of Kenya & 5 others  eKLR, Okenyo Omwanza & another v Attorney General, Petition No. 126 of 2011 among others.
39.Counsel argued that the respondents’ in drafting the impugned CPD policy were within their mandate. He further noted that the policy had been subjected to public participation. In the case of Elle Kenya Limited & others v Attorney General & others, Petition No. 320 of 2011 it was observed that this court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.
40.On the final issue, Counsel submitted that Section 9 of the Supplies Practitioners Management Act does not prescribe any key qualifications and competencies for the position CEO rather only states that the recruitment has to be done competitively. That as per the provision the power to determine the qualifications and competencies of the CEO is left at the discretion of the 2nd respondent and further does not bar appointment of an acting CEO.
41.Counsel as well pointed out that Section 34(1)(a) of the Public Service Commission Act provides that “acting appointments shall be made by the lawful appointing authority” which in this case is the 2nd respondent. He relied on the case of Community Advocacy and Awareness Trust & 8 others v Attorney General & 6 others  eKLR where it was held that it had never been the intention of the Constitution to subject decision making to the tyranny of tabulated legalism. That there is a margin of discretion conferred by the Constitution and the law upon those who make decisions and the test of rationality ensures that any legislation or official act is confined within the purposes set by the law.
42.To this end Counsel urged the Court to award the respondents costs owing to the fact that the petitioner has no locus standi and the petition was filed mala fides.
The 4th and 5th Respondents’ submissions
43.The 4th and 5th respondents filed written submissions dated 11th August 2021 through State Litigation Counsel, Patricia A. Chibole, who identified the issues for determination as:i.Whether there was any constitutional right infringed or threatened to be breached by the conduct of the respondents.ii.Whether there was public participation before implementation of the CPD policy and the Accreditation Policy by the Institute.iii.Whether the requirements for legitimate expectation doctrine were established by the petitioner for him to rely on the doctrine.iv.Whether the petitioner is entitled to the orders as prayed.
44.Counsel relying on the case of Anarita Karimi Njeru (supra) as restated in the case of James Muchene Ngei vs. Republic  eKLR, submitted that a person in seeking redress from the High Court should set out with reasonable degree of precision that which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed. According to her the petitioner had not demonstrated how the 4th and 5th respondents had violated his constitutional rights as set out in this principle. Further reference was made to the Mumo Matemu case (supra).
45.On public participation Counsel submitted that in keeping with this principle, the impugned CPD Policy and Draft accreditation Policy were rigorously benchmarked with similar policies by other professional bodies in the country and the public were equally made aware of the said policy. She contended that the failure to consider all views submitted at the public forum during public participation would not vitiate the process of participation. She referred to the case of Musimba v The National Land Commission & others  eKLR where it was held that the fact that the views given by the attendees at a public forum are all not taken into consideration does not vitiate the fact that there has been compliance with the requirement for public participation. Additional reliance was placed on the cases of National Association for the Financial Inclusion of the Informal Sector v Minister for finance and another (2012) eKLR and Consumer Federation of Kenya (COFEK) vs Attorney General & others -Nairobi Petition No. 11 of 2012.
46.On to the next issue, Counsel submitted that the petitioner had failed to establish that the petition satisfies the principles set out in the case of Communication Commission of Kenya & 5 others V Royal Media Services Ltd & 5 others (2014) eKLR that prove that his legitimate expectation was violated by the respondents. The principles are that there must be an express promise given by a public authority; that the expectation itself is reasonable; that the representation must be one that is competent and lawful for the decision-maker to make; and lastly that there cannot be a legitimate expectation against clear provisions of the law or the Constitution. Counsel while considering this pointed out that applying the alleged legitimate expectation as pleaded by the petitioner would be contrary to the clear provisions of the Supplies Practitioners Management Act.
47.In conclusion Counsel submitted that the petitioner is not entitled to the prayers sought as he had failed to prove that his case has merit, and the same should be dismissed with costs.
Analysis and Determination
48.I have perused the pleadings and submissions of the parties herein and it is my considered view that the issues for determination are as follows:i.Whether the petitioner has the necessary locus standi to institute this suit.ii.Whether the 1st and 2nd respondent’s provision of CPD training to its members is lawful in view of the Supplies Practitioners Management Act No. 17 of 2007.iii.Whether the Continuous Professional Development (CPD) policy was subjected to Public Participation.iv.Whether the appointment of 3rd respondent as the acting Chief Executive Officer was unlawful.v.Whether the respondents violated the petitioner’s legitimate expectation and constitutional rights under Articles 10(1) & (2),40, 46(1) (c ), 47, 73(2)(a), 73(2)(c)(ii) & (d), 75(1), 232(1)(d) & (e) and 259(1) of the Constitution.vi.Whether the petitioner is entitled to the reliefs sought.
Whether the petitioner has the necessary locus standi to institute this suit.
49.The locus standi of the petitioner was challenged by the 1st, 2nd and 3rd respondents who argued that there is no nexus between the cause of action herein and the petitioner. It was also asserted that the petitioner had failed to disclose on whose behalf the petition had been instigated and whether indeed these persons lacked the legal capacity to sue on their own behalf. It was further stressed that the petitioner had not shown whether the matter had been filed in public interest. The petitioner opposed these arguments stating that his ability to institute this suit was well covered under Articles 22 and 258 of the Constitution.
50.The meaning of the term locus standi was explained in the case of Daykio Plantations Limited v National Bank of Kenya Limited & 2 others  eKLR as follows:
51.The heart of the principle of locus standi was exhaustively elucidated by the Court of Appeal in the case of Randu Nzai Ruwa & 2 others v Secretary, the Independent Electoral and Boundaries Commission & 9 others  eKLR as follows:
52.The Court went on to state that:
53.I stand guided by the cited authorities and adopt the same in answering this question. It is appreciated that the 1st, 2nd and 3rd respondent’s opposition is based on the lack of nexus between the claim and the petitioner. This is since the petitioner does not make known on whose behalf the suit is brought and his interest in the matter. The petitioner on the other hand asserted that the suit concerns the exercise of these respondents’ authority as state corporations under the Supplies Practitioners Management Act No. 17 of 2007 which is argued to have violated a number of constitutional principles.
54.It is my considered view that the petitioner in this matter genuinely believes that there was a violation of the constitutional dictates and hence was entitled to approach the court for redress in public interest. I respectfully reject the respondents’ argument that the petitioner lacks audience before this Court. This in my view is an old version notion that was done away with by the 2010 Constitution under Article 22 and 258.Furthermore, it is this Court’s duty to grant every person an opportunity to present their case and have the Court ventilate on their issues in accordance with the law and their right to access justice under Article 48 of the Constitution. For avoidance of doubt, it is my finding that the petitioner has the necessary locus standi to sustain this suit.
Whether the 1st and 2nd Respondent’s provision of CPD training to its members is lawful in view of the Supplies Practitioners Management Act No. 17 of 2007
55.One of the key contentions in this matter is that the 1st and 2nd respondents are acting ultra vires their mandate in the Supplies Practitioners Management Act. In this regard the petitioner argued that the functions of these respondents do not include provision of training for Continuous Professional Development to its members. The petitioner argued that such action invokes a conflict of interest between the 1st respondent as the regulator and its members who offer similar training. Naturally this was opposed by the respondents who submitted that their training is well within its function as the regulatory body.
56.The Supplies Practitioners Management Act in its preamble makes known that it is ‘an Act of Parliament to make provision for the training, registration and licensing of supplies practitioners; to regulate their practice and for connected purposes’. The 1st respondent which is established under Section 3 of the Act is required to perform the following functions under Section 5:a.establish, monitor, improve and publish the standards of the supplies practitioners profession and safeguard the interest of all supplies practitioners;b.make provision for the training and instruction of persons seeking registration under this Act;c.recommend to the Minister for the time being responsible for education institutions to be approved for training of persons seeking registration under this Act;d.advise the Examinations Board on matters relating to examination standards and policies;e.have regard to the conduct of persons registered and licensed under this Act, and take such disciplinary measures as may be necessary to maintain a proper standard of conduct among such persons;f.perform such other functions as may be necessary for the proper administration of this Act.
57.With reference to Continuous Professional Development, the Act under Section 16 (10) provides as follows:
58.A reading of the cited provisions divulges that the 2nd respondent is mandated to advise on the provision of the CPD’s. Reasonably the 1st and 2nd respondents in regulating its professionals must ensure the mandatory standards are maintained and provide guidelines over these programmes. A reading of the Act makes it clear that no specific body or institution is stated as required to provide the CPD programmes as alleged by the petitioner. This in my interpretation is left at the discretion of the 2nd respondent owing to Section 16(10) of the Act. It would seem that the petitioner’s assertion was based on the argument that a regulatory body cannot regulate the services and at the same time conduct the training in view of the CPD programmes. In my view the petitioner’s interpretation over the issue does not have any legal basis in the Supplies Practitioners Management Act.
59.Further, an examination of the law of comparable regulatory bodies such as the Law Society of Kenya under Section 4 of the Law Society of Kenya Act, 2014 and the Engineers Board of Kenya under Section 7 of Engineers Act, 2011 makes known that one of their key functions is to set, maintain and continuously improve the standards of learning and professional competence for the provision of their services in Kenya. These bodies correspondingly provide regular CPD programmes to its members as facilitated by them and the externally recognized bodies.
60.The essence of the CPD training by the regulatory bodies was captured in the case of Eunice Nganga & another (supra) where the Court observed as follows:
Whether the Continuous Professional Development (CPD) policy was subjected to Public Participation
61.The other contention in this petition is that the 1st and 2nd respondents’ CPD policy was issued in violation of Articles 10 and 232(1) (d) of the Constitution as was not subjected to public participation. Additionally, it was argued that the policy being a statutory instrument failed to comply with Sections 2, 4, 5, 5A, 10, 11, 12, 13 and 14 of the Statutory Instruments Act. The respondents rebutted this allegation stating that the CPD Policy albeit an administrative instrument had been subjected to public participation as they had various consultative meetings with various stakeholders before enactment of the Policy.
62.One of the hallmarks of the Constitution is involvement of the public in its affairs so much so that it forms one of the national values and principles as envisaged in Article 10 of the Constitution. The Constitution obligates facilitation public participation and involvement in the legislative process at all levels. The essence of public participation has been captured in a plethora of cases such as those cited by the parties herein which I stand guided by.
63.To highlight briefly, the Court in the case of In Institute of Social Accountability & another v National Assembly & 4 others  eKLR on this topic observed as follows:
64.The Court went on to state that:
65.Further the Court in the case of Robert N. Gakuru & Others v Governor Kiambu County & 3 others  eKLR held as follows:
66.In the same way, the principles of making a statutory instrument are highlighted in the Statutory Instruments Act, Act No. 23 of 2013. This Act defines a statutory instrument as follows:
67.Evidently, the CPD policy was enacted under the authority of the Supplies Practitioners Management Act and so qualifies as a statutory instrument. The Act as such requires under Section 5 that:
68.Further Section 5A provides as follows:
69.Manifestly the importance of involvement of the relevant stakeholders to share their views and comments before enactment of a Statute or even a policy cannot be over emphasized. A lack of compliance with this principle as discussed in a plethora of cases affects the legality of the said Act or statutory instrument.
70.That said, an examination of the evidence presented before this Court reveals a number of things. The 1st respondent vide a letter dated 13th January 2021 invited its members to a Sensitization Forum on the CPD Policy Guidelines. Prior to this in a letter dated 8th January 2021, the 1st respondent had introduced the CPD Policy Guidelines to its members stating as follows in part:
71.The 1st respondent in this letter makes known that it had collected views from various stakeholders as follows:
72.This pronouncement is not supported by any evidence that indeed there was a call to the relevant stakeholders to participate in the public participation exercise. Likewise, the indicated stakeholder engagements are not identified and particularized. That is the respondents do not show the various dates, venues and meetings that took place in this regard. As emphasized severally, public participation ought to be real and not illusory. This means that it must be clear that an invitation to the relevant stakeholders was made with details of the said policy. This invitation ought to be in form of a notice or advertisement either in a publication with wide national circulation and communication to the relevant parties such as its members. The stakeholders must also be given an opportunity to issue their comments and views within a specified period before enactment of the policy.
73.Generally, this process is usually well documented in a trail of documentation which can easily be adduced in Court as evidence to ascertain the averment that indeed public participation was conducted. Once the petitioner alleged that the policy was enacted devoid of public participation it was incumbent on the 1st and 2nd respondents to prove that indeed they carried out the exercise before enactment of the CPD policy. Furthermore where this exercise was not conducted, reasons were to be stated as provided under Section 5A (2) of the Statutory Instruments Act.
74.What is clear from the adduced evidence is that the 1st respondent’s call to the members was done after enactment of the CPD policy and was aimed at briefing the members on the Policy and what to expect from its enactment. 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 issued the following guiding principles on public participation:
75.A perusal of the adduced evidence makes it apparent that the 1st and 2nd respondents did not in the slightest way seek to uphold these principles before enactment of the CPD Policy Guidelines. The effect of lack of compliance to the public participation principle manifestly renders the impugned Policy unlawful and unconstitutional. It is my humble finding therefore that the public participation principle as envisaged under Article 10 of the Constitution and the Statutory Instruments Act was not satisfied in the circumstances of this case.
Whether the appointment of 3rd Respondent as the acting Chief Executive Officer was unlawful.
76.One of the issues raised in the instant petition is the legality of the 3rd respondent’s appointment as the 1st respondent’s acting CEO. The petitioner argued that this was not in line with Section 2 and 34 of the Public Service Commission Act and in effect in violation of Articles 10 and 73(2)(a) of the Constitution.
77.The 1st and 2nd respondents while rejecting this assertion stated that they had made the appointment in line with the law. Nevertheless, they argued that this Court does not have jurisdiction to deal with this matter as the question invokes the Employment and Labour Relations Court’s jurisdiction.
78.The Supreme Court in the case of Samuel Kamau Macharia (supra) makes known that:
79.The High Court’s jurisdiction to entertain constitutional matters is found in Article 165(3)(d) of the Constitution which provides as follows:(3)Subject to clause (5), the High Court shall have--(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;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191.
80.The Constitution additionally in Article 162 establishes two more Courts of equal status with the High Court who exercise jurisdiction over environment and land matters and employment and labour relations. This Article provides as follows:(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to--a.Employment and labour relations; andb.The environment and the use and occupation of, and title to, land.
81.As a result of Article 162 of the Constitution the High Court is barred under Article 165(5)(b) of the Constitution from exercising jurisdiction conferred to the special courts. This Article provides as follows:
82.The Parliament as empowered by Article 162 of the Constitution enacted the Employment and Labour Relations Court (No. 20 of 2011) which deals exclusively with matters falling within its ambit. The Jurisdiction of the Court is defined in Section 12 of the Act as follows:
83.The Court in the case of Sollo Nzuki v Salaries and Remuneration Commission & 2 others  eKLR while expounding on the jurisdiction of the Employment and Labour Relations Court opined as follows:
84.The dispute herein relates to the employment and appointment of the 3rd respondent by his employer as the acting CEO. Evidently, this matter invokes the jurisdiction of the Employment and Labour Relations Court which bars this Court from making a determination on the legality of his appointment by the 2nd respondent. With this in mind, this Court’s determination over the issue would be an exercise in futility as any decision made without authority from the Constitution or the law is void ab initio. Bearing this in mind, this Court will not make a determination over this issue.
85.From the foregoing analysis, I find that the respondents in view of its failure to conduct public participation as required by the Constitution and the law, violated the petitioner’s legitimate expectation and constitutional rights under Articles 10(1) & (2),40, 46(1) (c ), 47, 73(2)(a), 73(2)(c)(ii) & (d), 75(1), 232(1)(d) & (e) and 259(1) of the Constitution. Accordingly the petitioner is entitled to the reliefs sought in that regard.
86.As to the award of costs, this being a public interest matter the Supreme Court addressing this question in the case of Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others  eKLR guided as follows:
87.I stand guided by the above. This being a matter advancing public interest as opposed to personal gain, and which sought to question the constitutionality of the 1st and 2nd respondents’ CPD Policy Guidelines and protection of fundamental rights and freedoms, I am of the view that each party ought to meet their own costs of the suit.
88.The upshot of the foregoing and for the reasons set out above, the petition dated 18th January 2021 has merit and succeeds partially. The following orders are made:i.The continuous Professional Development (CPD) policy is unconstitutional null& void.ii.There is no conflict of interest where the institute offers training alongside the entities it regulates.iii.Revocation of the 3rd respondent’s appointment is declined.iv.Each party to bear its own costs.