Hussein & another v Governor, County Government of Mandera & 2 others; Somo (Interested Party) (Petition E143 of 2023) [2023] KEELRC 2656 (KLR) (30 October 2023) (Judgment)
Neutral citation:
[2023] KEELRC 2656 (KLR)
Republic of Kenya
Petition E143 of 2023
B Ongaya, J
October 30, 2023
IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 1, 2(1), 3(1), 10(1) (2), 22, 23, 27(1) (2), 73, 232 AND 258 OF THE CONSTITUTION OF KENYA
-AND-
IN THE MATTER OF SECTIONS 7(8) AND 8 OF PUBLIC APOINTMENTS (COUNTY ASSEMBLIES APPROVAL) ACT NO.5 OF 2017
-AND-
IN THE MATTER OF SECTION 5 OF THE OFFICE OF THE COUNTY ATTORNEY ACT, 2020
-AND-
IN THE MATTER THE ILLEGAL APPOINTMENT OF HUSSEIN ADAM SOMO AS THE COUNTY ATTORNEY, COUNTY GOVERNMENT OF MANDERA
-AND-
IN THE MATTER OF EXERCISE OF CONSTITUTIONAL & STATUTORY POWERS BY THE COUNTY- GOVERNOR & COUNTY ASSEMBLY
Between
Sadam Maalim Hussein
1st Petitioner
Ahmed Maalim Adow
2nd Petitioner
and
The Governor, County Government of Mandera
1st Respondent
The County Government of Mandera
2nd Respondent
The County Assembly, County Government of Mandera
3rd Respondent
and
Hussein Adam Somo
Interested Party
Judgment
1.The petitioners filed the petition dated 20.07.2023 through Kusow & Company Advocates. They prayed for:
2.The petition was based upon the supporting affidavit of Sadam Maalim Hussein and upon the following pleaded and urged grounds:
3.The 1st and 2nd respondents and, the interested party appointed Issa & Company Advocates to act in the matter. The 1st and 2nd respondents filed a replying affidavit sworn by Billow Issack Hassan (the County Secretary) on 28.07.2023 and a response to the petition sworn by the same Billow Issack Hassan on 18.10.2023. The 1st and 2nd respondents urged as follows:
4.The interested party filed his replying affidavits sworn on 28.07.2023 and on 18.10.2023 both filed through Issa & Company Advocates. The interested party repeated the factual account of the process leading to his appointment as stated for the 1st and 2nd respondents. Further, as at time of his appointment as the County Attorney, he had practiced law for over 5-years. He stated that the petitioners were aware of his appointment at all material times but belatedly filed the petition 9 months after his appointment. He narrated how he initiated the disciplinary process against the petitioners and stated that his appointment be upheld. He exhibited his practicing certificates for 2018, 2019, 2020, 2021 and 2022 all dated 1st of January of each of those years.
5.The 3rd respondent’s response to the petition was by the affidavit sworn on 18.10.2023 by Ahmed H. Surow (the Clerk to the County Assembly) sworn on 18.10.2023 and filed through Hashim Mohamed Nur Adhan. The affidavit repeats the account given for the 1st and 2nd respondents leading to nomination, vetting for approval, and, approval for appointment of the interested party.
6.The 1st petitioner filed a supplementary affidavit sworn on 31.07.2013. The petitioner repeated that the interested party lacked the 5-years standing advocate statutory requirement, the respondents had failed to exercise due diligence in that regard, and, the 3rd respondent had the statutory duty to exercise due care and diligence during the approval and vetting proceedings even where the public generally or the petitioners in particular, had not presented objections. In particular, it was urged that under section 7(8) of the Public Appointments (County Assemblies Approval) Act, 2017 the 3rd respondent was obligated during the approval hearing to focus on, amongst others, a candidate’s academic credentials and professional training. Further, section 8 of the Act obligated the 3rd respondent, in relation to the nomination to consider the procedure used to arrive at the nominee including the criteria for the short listing of the nominees; any constitutional or statutory requirements relating to the office in question; and, the suitability of the nominee for the appointment proposed having regard to whether the nominee’s credentials, abilities, experience and qualities meet the needs of the body to which the nomination is being made.
7.Final submissions were filed for the parties. The Court has considered all the material on record and the parties’ respective positions. The Court returns as follows.
8.The 1st issue is whether the petitioners brought the petition in good faith or that it was in bad faith in view of the manner they had been subjected to disciplinary proceedings and subsequently separated from the 2nd respondent’s public service. The petitioners have not denied that at all material times prior to filing the petition they had previously worked for the 2nd respondent and the employment ended in an aborted disciplinary process when they each avoided to attend the disciplinary hearing. Bad faith would entail a party being dishonest or fraudulent in a transaction or simply unfair dealing. The transaction in issue in the instant petition is the nomination, approval and subsequent appointment of the interested party as a county Attorney. The Court considers that transaction in issue clearly independent and not even remotely related to the disciplinary proceedings and eventual separation of the petitioners from the 2nd respondent’s employment. The petitioners’ case is that the interested party was nominated, approved for appointment and appointed as a County Attorney whereas he did not have the requisite statutory qualification of being an advocate of 5-years standing. In relation to the impugned transaction, the invoked disciplinary proceedings are found insignificantly remote as unrelated transaction. Bad faith has not been established at all and the Court is reluctant to find that in the circumstances, the petitioners have filed the petition purportedly in public interest to further ulterior motives as alleged and submitted for the respondents. It cannot be said that in light of the germane and impugned transaction of nomination, approval, and appointment in issue, the petitioners had filed the petition to satisfy their own personal grudge and enmity as was considered by the Supreme Court of India in Subhash Kumar -Verrsus- State of Bihar & Others (1991) AIR 420 and simply upon the account of ended disciplinary proceedings that had been commenced against the petitioners while the 2nd respondent employed them. However, while making that finding, the Court has reflected upon the failure of the petitioners to make representations to the 3rd respondent during the vetting and approval hearings and by that reason, it may be that they might have been perceived to act not in good faith but in bad faith. That failure is the next issue for consideration.
9.The 2nd issue is whether the petition is justiciable even after the petitioners failed to make objection representation whereby the 3rd respondent had publicly made invitation for such representation. The petitioners have not denied failure to objecting to the approval for appointment of the interested party before the 3rd respondent’s approval hearing. The petitioners have not also offered any reasonable impediment to their making such objection or representations. They then filed the petition 9 months after conclusion of the appointment of the interested party as the County Attorney. The failures and which are without due reasonable explanation appear to the Court to constitute bad faith in relation to the transaction of the nomination, approval for appointment and then appointment of the interested party as a County Attorney. The 3rd respondent was the prescribed statutory platform for the petitioners to urge their objections against approval of the interested party by the 3rd respondent for the appointment as the County Attorney but for unexplained circumstances, they failed to do so. The Court considers that such failure blended with the said bad faith would render the petition unjusticiable.
10.In Lucy Njoki Waithaka v Tribunal appointed to investigate the conduct of Lucy Njoki Waithaka & another; Kenya Magistrates and Judges Association (Interested Party) [2019] eKLR the Court opined thus,
11.In finding the petition was not justiciable in the circumstances of the case, the Court considers that indeed the interested party strictly did not have the 5-years standing but the issue appears more moot or stale and not justiciable upon the earlier findings of the Court and further in consideration of the submission for the 1st and 2nd respondents and the interested party thus, “25. In any event and without any prejudice to the above, the period of five calendar years from the date the Interested Party was admitted to the roll of advocates on 27th March 2018, lapsed on 27th March 2023 and therefore the question as to whether the Interested Party meets the requisite qualification to hold the office of County Attorney, we submit is moot.” The Court finds that by that submission, the parties appear to be in mutual agreement, and which the Court finds to be the position, that in computing whether a candidate is an advocate of at least 5-years standing as prescribed in section 5(2) of the Office of the County Attorney Act, 2020, the period is reckoned effective the date the candidate signed the roll of advocates. It is not to be reckoned based on dates of issue of the candidate’s advocate’s practicing certificate and whose validity is prescribed under section 24 (1) of the Advocates Act which provides that, every practicing certificate shall bear the date of the day on which it is issued and shall have effect from the beginning of that day; provided that a practicing certificate which is issued during the first month of any practicing year shall have effect for all purposes from the beginning of that month. The Court considers that the instant case was not about validity of the interested party’s practicing certificate but whether he was an advocate of at least 5-years standing, and which, the Court has found to be reckoned from the date the advocate signed the roll of advocates being the date of the certificate or Chief Justice’s order of admission as an advocate. Per section 15 of the Advocates Act, it is the admission to the roll of advocates that signifies that a person is qualified as an advocate under the provisions of the Act and upon signing the roll of admission, the time of standing as an advocate starts to run. The Court finds accordingly.
12.The Court further considers that the petition was as well not justiciable for want of exhaustion by the petitioners of the procedure provided in the Public Appointments (County Assemblies Approval) Act, 2017 for making the objections as is now purportedly urged in the instant case. The Court follows its ruling delivered on 27.04.2023 in Dr. Magare Gakenyi Benjamin -Versus- Honourable Attorney General and 2 Others; Teresia Mbaika Malokwe and 53 other Interested Parties, ELRC Petition No. E207 of 2022 at Nairobi thus, “10. The Court therefore returns that the preliminary objection would succeed on account of want of exhaustion of the prescribed statutory procedure under the Public Appointments (Parliamentary Approval) Act No. 33 of 2011. By that finding alone, the petition would collapse as augmented with the cited doctrine of justiciability. While making that finding the Court has considered the mixed constitutional, statutory, and legitimate political, social, or economic considerations surrounding the challenged appointment of the Principal Secretaries, the interested parties herein together with the guiding values and principles in Articles 10, 232, and Chapter 6 of the Constitution. The Court considers that the failure to invoke and follow the procedure prescribed in the Act was such a serious bar precluding the petitioner from challenging the appointments as made and already implemented. The Court considers that the provisions in the Act are such that a challenge to the appointments must be prompt and flow as anticipated in the Act. The Court further holds that it enjoys jurisdiction for judicial review on merits of the decisions made by the respondents in that regard such as on account of the doctrine of unreasonableness such as is envisaged in Article 47 of the Constitution, on account of the principle of illegality, on account of constitutionality and, on account of established manifest injustice. However, looking at the grievances urged by the petitioner, they all squarely fall within the purposes for which the dispute and challenge procedure under the Public Appointments (Parliamentary Approval) Act No. 33 of 2011 was enacted. Failure to promptly invoke that procedure amounts to a bar especially that the interested parties have moved to take up the appointments in circumstances that their recruitment procedure and subsequent appointment appear not to have been challenged at all (looking at the facts and material before the Court) and as per the prescribed statutory provisions.” It appears to the Court that the findings in that decided case squarely apply to the instant petition.
13.The 3rd issue is on remedies. Both parties have invoked the Court’s decision in Commission for Human Rights and Justice -Versus- Michelle Bibi Fondo & 2 Others [2021]eKLR where the Court stated as follows,
14.In the present petition, the finding that the petition was not justiciable for the various stated reasons renders the remedies untenable. The only objection to the appointment of the interested party as a County Attorney was that he did not possess at least 5 years standing as an advocate. He has since qualified as such. The doctrines of justiciability, proportionality and reasonableness as well as consideration of prudent application of public resources all operate as bars to granting the remedies as prayed for. It will not serve public interest for the declarations and the order of certiorari to issue in circumstances that the respondents would anyway be entitled to recommence the nomination, approval, and appointment proceedings only to reappoint the interested party and all at the expense of public resources and the petitioners having failed to avail themselves the prompt intervention opportunity accorded under the Public Appointments (County Assemblies Approvals) Act, 2020. It is in that sense that the Court upholds the submission made for the respondents that the petitioner having qualified beyond doubt per the statutory provision by effluxion of time yielding him at least 5-years standing as an advocate, the dispute is thereby rendered moot, academic or stale thereby crystallizing as not justiciable. The Court has considered the prayer for the judicial review order of mandamus. It is that mandamus shall not issue unless the applicant establishes that the respondent was vested a public duty to perform and despite demand, the respondent had failed, refused or neglected to so perform the statutory or public duty. The petitioners have failed to pass that test with respect to the prayer for mandamus as drawn. The Court follows Republic -Versus- Director General of East African Railways Corporation Ex-Parte George Nume Kaggwa [1977]eKLR where Z.R. Chesoni J held, “ Adequate supervision of enforcement is inter-related with the possibility of effective enforcement which must exist for the order of mandamus to go. Thus, the person or authority against whom it is prayed must have the power to obey. If the results of granting the order would be futile the Court will, usually, refuse the order…If the circumstances have rendered the performance of something impossible, a mandamus will not go.” In the instant case, the statutory or public duty for the interested party to refund has not been established at all especially in circumstances that for the challenges raised in the instant case, he otherwise has worked as appointed and the remuneration and other benefits enjoyed are, the due consideration, for the public service already or duly rendered.
15.The Court has considered the circumstances of the case and the findings. The Court also considers that the petition is within the growth of jurisprudence in view of the Constitution of Kenya 2010 including the nascent devolved system of government. Thus, each party will bear own costs.
16.In conclusion judgment is hereby entered for the respondents against the petitioners for:
SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS MONDAY 30TH OCTOBER, 2023.BYRAM ONGAYAPRINCIPAL JUDGE