Okoiti & another v Waiguru the Cabinet Secretary Devolution & Head of Public Service & 3 others (Petition 42 of 2014) [2014] KEIC 741 (KLR) (15 October 2014) (Ruling)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

PETITION NO. 42 OF 2014

OKIYA OMTATAH OKOITI ………………………........ 1^st  PETITIONER

NYAKINA WYCLIFF GISEMBE ……………………….. 2^ND PETITIONER

VERSUS

ANN WAIGURU

THE CABINET SECRETARY, DEVOLUTION

& HEAD OF PUBLIC SERVICE …………………..……. 1^ST RESPONDENT

JOSEPH KINYUA, THE STATE HOUSE CHIEF

OF STAFF AND HEAD OF PUBLIC SERVICE …..….. 2^ND RESPONDENT

PETER O. MANGITI

THE PRINCIPAL SECRETARY,

DEVOLUTION & PLANNING ……………………..…. 3^RD RESPONDENT

MARGARET KOBIA

CHAIRPERSON,

THE PUBLIC SERVICE COMMISSION ………………. 4^TH RESPONDENT

Mr. Nyakina Wycliff Gisembe in person

Mr. Ngatia for the 1^st Respondent

Mr. Mutinda for the 2^nd, 3^rd and 4^th Respondents

RULING

1.       The Petition dated 19^th June 2014 was filed on 23^rd June 2014  alleging in the main;

1.      Violation of General Provisions relating to the Bill of  Rights in Articles 12(1), 19, 20, 24 and 25;
2. Violation of Rights and fundamental Freedoms in Articles  26, 27, 28, 29, 40, 41, 43, 46, 47 and 50;
3. Violation of Constitutional Values and Principles in  Articles    1, 2, 3, 10, 73, 74 (As read with the Third Schedule, 75, 20, 232, 233, 234, 236, 249, 252, 253,      and 259 of the Constitution.
4. The Constitutional Validity of the policy on the decentralization of the Human Resource management in   the Civil Service to wrest control over Civil servants from  Principal secretaries and to vest it in Cabinet secretaries.
5. Violation by Cabinet Secretary Anne Waiguru of The National Government Coordination Act, 2013, The Public   Service Commission Act, 2012.  The Public Officer Ethics Act 2003, The Leadership and Integrity Act 2012, The  National Youth service Act, The State Corporation Act and The Youth Enterprise Development Order 2007;
6. The Alleged Violation by Cabinet Secretary Anne Waiguru of the Schemes of Service in the Public Service, and the  Constitutional Validity of the Removals from and appointments into offices in the Public Service made by  the Cabinet Secretary.
7. Constitutional Validity of the State House Chief of Staff and Head of Public Service Joseph Kinyua usurping the functions of the Public service Commission; and
8. Alleged Devolution of duty by Margaret Kobia and her incompetence as the Chairperson of the Public Service    Commission and the Alleged Devolution of Duty by Peter O. Mangiti and his incompetence as the Principal   Secretary State Department of Planning.

2.    The Petitioners are Mr. Okiya Omtatah Okoti and Nyakina Wycliff Gisebe who describe themselves as citizens of Kenya,  Human rights defenders and members of Kenyans for Justice  and Development Trust, a legal Trust incorporated in Kenya.

3.     The Respondents are the Cabinet Secretary, Anne Waiguru; The     State House Chief of Staff and Head of Public Service Mr. Joseph     

Kinyua.  The Principal Secretary, Devolution and Planning Mr.Petero O. Mangiti and M/S Margaret Kobia, chairperson, The       Public service Commission.

 A raft of orders a – v are sought in the Petition.

4.      Simultaneously with the Petition was filed an application on  Certificate of Urgency dated 19^th June 2014 and filed on 23^rd June  2014 seeking interalia, an order;

5.       “2  That the Honourable Court be pleased to certify that the   Petition herein raises a substantial question of law and forthwith  refer the case to His Lordship the Chief Justice for appointment    of a bench of three or five Judges pursuant to Article 165(4) of     the Constitution of Kenya 2010.”   

6.      “12   That pending hearing inter-partes and determination of  the Notice of Motion application herein the Honourable   Court be pleased to issue and issues stay orders temporarily suspending the implementation Roadmap set to begin on 30^th  June 2014, as laid out on pages 6 of the document dated May, 2014, Policy on Decentralization of Human  Resource in   the Civil service.”

7.       I have singled out these orders for the reason that, when the matter came before Hon. Lady Justice Maureen   Onyango on 23^rd June 2014, the judge, granted interim orders in terms of  prayer 12 pending interpartes hearing of this Application and    prayer 2 which   necessarily needs to be determined at this stage.

The Application is supported by an Affidavit by the 1^st   Petitioner Okiya Omtata Okoti dated 19^th June 2014. The   deponent, has also sworn another Affidavit in support of the   Petition.

8.    All the persons alleged in the Petition as having been aggrieved  by various decisions by the Respondents have not filed any   supporting or verifying Affidavits on the matters alleged to   have happened to them and / or giving authority to the           Petitioners to come to Court on their    behalf.

9.     The 1^st Respondent filed a replying Affidavit in response to the Petition and Affidavits filed by the 1^st Petitioner on 23^rdJuly       2014.

          The 1^st Respondent also filed supplementary Affidavit    on 30^th  July 2014.

10.     At this stage, the issues for determination simply put are as    follows;

Whether the Court should refer the matter to The Hon. the    Chief Justice for constitution of a bench of uneven number of Judges upon certification that the matter raises substantial issues  of law for determination pursuant to Article 165(4) of the   Constitution; and

 Whether the interim orders issued by the Court should   be confirmed pending the hearing and determination of the matter.

11.      1^st issue

          In the matter of J. Harrison Kinyanjui Vs. The Hon.  Attorney General and Judicial Service Commission and   19 others.  H.C.C. at Nairobi, Petition No. 74 of 2011, Hon.      D.S. Majanja considered the decision of the Indian Supreme  Court in   Chuilal V. Mehla V. Century Spinning  and Manufacturing Co. Air 1962 SC 1314 which laid down the following test for  determining whether a question of law raised in the case is a   substantial question of law or not.  It    stated

12.     “The proper test for determining whether a question  of law   raised in the case is substantial would be whether it is of   general public importance or whether it directly or substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the privy Council or is not free from difficulty or calls for discussion of alternative views.  If   the question is settled by the Highest Court or the general Principles to be applied in determining the questions are well  settled and there is more question of applying these principles   or the plea raised is palpably absurd, then the question would not be a substantial question of Law.”

13.     In rejecting this dicta, Hon. D. S. Majanja J. stated;

           “if I were to accept the above dicta, then it would follow, that every question concerning our constitution would be   substantial question of Law.  Each case that deals with the   interpretation of the   Constitution or our expanded Bill of Rights would be a substantial question of law as it is a matter of   public interest,affects the rights of the parties, is fairly novel and has not been the subject of pronouncement by the    highest Court. This would burden judicial resources to the  extent that the   value of obtaining justice without delay  under Article 159(2)(b) would be imperiled.”

14.     It must not be lost on the litigants that jurisdiction conferred on  the High Court under Article 165(3) and to the Courts with the   status of the High Court under Article 162(2)(a) & (b) which  includes jurisdiction to determine the question whether a right     or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened or interpretation of theConstitution as a whole is conferred on a single Judge of the      respective Courts.

15.     Accordingly, the Constitution of a bench of uneven number of  Judges assigned by the Chief Justice is an exception not the rule.  In this regard, as was stated by Majanja J.;

          “there must be something more to the ‘substantial   question’ than merely novelty or complexity of the issue before   the Court.  It may also present unique facts not plainly covered by the controlling precedents.It may also involve important questions concerning the scope and meaning of the decisions of  higher Courts or the application of well-settled principles to the    facts of a case.”

16.     The Court notes further that the applicant has the duty to  discharge the burden placed on him / her under Article 165(4)  to show that the cause of action raises substantial questions of     law.

17.      I have looked at the matters raised in the body of the Petition and in the supporting Affidavit and have come to the following    conclusion:

The Petitioners primarily complain about;

  (a) removal and replacement from office of persons employed      by the Public Service Commission;

(b) appointment of the State House Chief of Staff and the Head of Public service by the President without vetting by Parliament and his alleged supervision of public officers;

(c) violation of scheme of service by alleged ‘rogue’ administrative decisions of the 1^st and 2^nd Respondents.

(d)    promulgation of ‘rogue’ policy on the decentralization of human resource management in the Civil service and by so doing wrestling control of the public human resources in state departments from principle secretaries and vest them in cabinet secretaries contrary to the provisions of the Constitution.

18.  These allegations of fact have been contested by the 1^st Respondent and are therefore the subject of trial at the hearing  of the Petition.

The court notes that matters of appointments, transfers and removals are routine at the Industrial       Court of Kenya.

19.     The principles involved in the determination of these employment matters are well articulated in the statues of Kenya and the provisions of the Constitution of Kenya 2010.

The matters raised in this Petition cannot be said to be novel nor   are they extremely complex as to amount to ‘substantial    questions’ of law.

20.    Furthermore, a determination by one Judge of a superior Court     has same judicial value as that by a bench of uneven number of  Judges.

Even though, it is generally accepted that two heads are better  than one, this must be weighed against the need to utilize the    very lean judicial resources in the best interest of the majority of      Court users and the Public at large.

21.     The Court therefore declines the invitation to refer this matter to The Hon. the Chief Justice in terms of Article 165(4) of the Constitution.

The matter will be heard and determined by a single Judge of   the Industrial Court.

22.     2^nd Issue

          The granting of an interdict as the one sought under prayer 12 of the Notice of Motion to suspend the Implementation Road Map set to begin on 30^th June 2014 namely “policy on   Decentralization of Human Resource in the Civil   Service”            which is an interlocutory order is an exercise of judicial   discretion which must be exercised judiciously. 

See Sargent v. Patel (1949) 16 E.A.C.A. 63.

23.     The purpose of a temporary injunction is to preserve the status   quo and as was stated in Mary Ariviza & Okoth Mondol V.AG of Kenya and Anor E.A.L.S. Law Digest 2005 – 2011 3.  “The conditions for the grant of an interlocutory       injunction are     well settled in East Africa:-

1. An Applicant must show a primafacie case with a probability of success.
2. An Interlocutory Injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.
3. If the Court is in doubt, it will decide an application on the balance of convenience.”

24.    The Applicants allege that the administrative decisions by the 1^st Respondent constitute an abuse of power and are tainted  with unreasonableness and procedural impropriety.  The Court notes that the alleged Grievants, Mr. Semelang’o and Mr. Japter Kiplimo Rugut who were allegedly removed from their position and replaced with Mr. Bruce Odhiambo and   Dr.   Nelso Githinji respectively have not placed any verifying  Affidavit on record and there is no documentation on record to  signify their discontent with the impugned changes.

25.     To this extent, the Applicants have not made out a primafacie   case warranting any interim intervention with respect to the    two removed officers.

Those who have replaced them have not been enjoined in this  matter so as to assert their rights in the dispute.

26.    With regard to the impugned policy document titled    “implementation of the policy on Decentralization of  Human   Resource in Civil Service” dated 3^rd June 2014, there is no evidence placed on record by the Applicants to show any discontent from any stakeholder with the proposed    policy   document.

27.     At this stage the Court is interested in facts that establish on a   primafacie basis the need to injunct the implementation of the   intended policy.

The 1^st Respondent, Cabinet Secretary Anne Waiguru hasextensively dealt in the replying Affidavit and the  supplementary Affidavit referred to earlier with the alleged      infractions of the law.

28. The Court having considered the competing arguments has come to the conclusion that the Applicants have failed to   show a primafacie case with a probability of success.

29.    The Applicants have also not shown that failure to grant the  interim relief sought would occasion the Applicants irreparable injury, which would not adequately be compensated by an      award of damages.

30.    The persons allegedly removed from office irregularly, would no    doubt be entitled to private reliefs if they chose to approach the Court, which they have not done.

31.   Government policy development and implementation is a  continuous process and no policy is cast in stone.  If the Petitioners succeed upon the hearing and determination of the Petition, the impugned policy would be declared null and void as per the prayers in the Petition.

After all, there is no evident outrage expressed by the Kenyan Public regarding the policy.

The Applicants equally fail in this regard. 

32.     The Application is accordingly dismissed with costs and the  Petition will take its normal course.

Dated and Delivered at Nairobi this 15^th day of October, 2014.

MATHEWS N. NDUMA

PRINCIPAL JUDGE