Abdi Ahmed Abdi v Cabinet Secretary for Interior and Co-ordination of National Government, County Commissioner, Garissa County, Attorney General, Member of Parliament, Garissa Township Constituency, Member of Parliament, Balambala Constituency, Member of Parliament, Daadab Constituency, Governor, Garissa County Constituency & Independent Electoral and Boundaries Commission [2017] KEHC 3302 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION   NO 238 OF 2015

Abdi Ahmed Abdi...............................................................................Petitioner

versus

Cabinet Secretary for Interior and

Co-ordination of National Government...............................1st Respondent

County Commissioner, Garissa County.............................2nd Respondent

The Honourable Attorney General.......................................3rd Respondent

Member of Parliament,

Garissa Township Constituency..........................................4th Respondent

Member of Parliament, Balambala Constituency............5th Respondent

Member of Parliament, Daadab Constituency..................6th Respondent

The Governor, Garissa County Constituency.....................7th Respondent

Independent Electoral and Boundaries Commission.....8th Respondent

JUDGEMENT

The petitioners' case

1. This petition challenges two advertisements dated 15th May 2015 (Ref Nos. DC/HR/1/30/105 and Ref No. DC/HR/1/30/ 106) by the first Respondent advertising positions of Chiefs Grade 11, Job Group "H" and Assistant Chief  11,  Job Group "F" alleging  that  the advertisements contravened of court orders and they erroneously indicated that Abdisamit Loction is in Central Division of Garissa Sub-County yet it is in  Dertu Division, Dertu Ward, Daadab Constituency. Also, the advertisements for Assistant Chiefs incorrectly indicated that Auliya Sub-Location is in Abdisamit Location of Sankuri Division, yet it is in Laago sub-location in Modika Location. Further, the advertisements restricted applicants to residents of the above locations/Sub-locations.

2. The petitioner challenges the creation of the said administrative units on grounds of:- (a) absence of public participation; (b) that the electoral/administrative boundaries were determined in High Court Judicial Review Misc Application No. 120 of 2012 in  a consolidated petition  No. 94 of 2012. [1]

3. The petitioner avers case that  the said judgement has never been reviewed, appealed against or  varied, yet, contrary to the court judgement, the first Respondent unlawfully moved Abdisamit Location from Dertu Division to Central Division of Garrisa Sub-County and annexed Auliya Sub-Location, Laago Sub-County from Dertu Ward of Daadab Constituency to Abdisamit Location of Sankuri Division and Modika Location respectively.

4. The petitioner further avers that  Auliya and Abdisamit geographically falls within Dertu Location, Dertu Division, Dertu Ward of Daadab Constituency, hence the intended creation of new sub-locations would dislocate Daadad residents and force them to seek services at Balambala and subject them to hardship  in violation of their right to fair administrative action and in violation of their constitutional rights.

First  and Second Replying Affidavit

5. James Kianda, the acting County Commissioner of Garissa County on behalf of the first and Second Respondent swore the affidavit  filed on 5th August 2015. He admits the said advertisements and annexed a letter from the then Provincial Commissioner North Eastern Province granting authority to create the said administrative units and that upon conducting interviews for the said positions, the first Respondent appointed a one Mohamed Abdi Aden for the position of assistant chief for Abdisamit Sub-location on acting capacity.

6. He averred that the creation of the said location and two administrative units did not violate the provisions of the constitution or the law, that it was in response to  an urgent need to bring the services closer to the people and aiding maintenance of security along the Kenya Somali border and also aiding of relief food and proper co-ordination between the government, private institutions and non-governmental organizations.

7. He also avers that the appointments were necessitated by the need to  address security concerns considering the unique situation of the region, and that this petition was filed 4 years after the said appointments and insisted that  Abdisamat, Lago and Auliye are administratively in Garissa District and have never formed part of Dadaab District as claimed by the petitioner.

8. He also averred that section 2, 17 and 31of the sixth schedule to the constitution confers the mandate of creating administrative structures upon the National Government and denied the alleged violation of court orders. He insisted that Alango Arba Location is under Dadaab District while Auliye and Abdisamat are under Garissa and that the issues before court are different from issues in the previous suit and in any event the said decision was overturned by the court of appeal and denied breach of any constitutional rights. He also averred that  the decision was inconformity with  the provisions of the Districts and Provinces Act 1992 and that the orders violate separation of powers.

Fourth Respondents Response

9. Hon. Aden Duale, the M.P. for Garissa Township Constituency in his Replying Affidavit avers that the petition is premised on false facts and that on 3rd November 2010, during his tenure as the MP for Dujis Constituency, administrative areas of Abdisamat Location comprising of two of Aluiya and Lago were created by the office of the president. Subsequently, Dujis Constituency was created from Garissa Township and Balambala Constituencies while Dadaab Constituency was created by splitting Lagdera Constituency  creating Ladgera and Daadab constituencies, thus extending the electoral and administrative boundaries of their mother constituencies of Dujis and Lagdera respectively.

10. He also avers that Sankuri Division of Balambala Constituency has always administratively been under Garissa District (which includes Abdisamat, Awliya and Laago locations of Sankuri Division) and that the chief of Abdisamat has always exercised administrative functions over Auliye while Lago was administered from Modika location, hence the challenged recruitment was meant to staff existing administrative locations and that the judgement cited[2] by the petitioner only dealt with electoral boundaries and not administrative units and in any event the said decision affected only Alango Arba location which was moved to Daadab constituency and Medina location which was moved to Garissa  Township Constituency.

Fifth Respondents' Response

11. Hon. Abdikadir Omar Aden, MP. Balambala constituency in a affidavit filed of 7th July 2015 states that no remedies have been sought against him.  He insistS that Abdisamet location and Lago and Aulia sub-locations have always been in Garissa and Dujis constituency prior to the delimitation which created Balambala and Dadaab constituency.

Sixth Respondents' Response

12. Hon. Dr. Mohamed D. Duale, M.P. Dadaab Constituency in a Replying Affidavit filed on 4th November 2015 supports the petition. He insists that the impugned administrative units have ignited conflict and claimed  at least 3 lives and destruction of property and that the issues herein were settled in a previous court decision.

Eight Respondents' Replying Affidavit

13. Moses Kipkogei, avers that the eight Respondents constitutional mandate does not include creation of administrative units which is vested upon the first Respondent and insists that this dispute is res judicata having been determined in Pet. No. 94 of 2012.

Petitioners' Further Affidavits filed on 11th December 2015 &  18th December 2015

14. The petitioner filed two Replying affidavits the crux of which are; this case is not res judicata; Legal Notice No. 208 of 9thApril 1963 defined the electoral boundaries which conformed to the existing administrative units; Legal notice No.  344 of 19th December 1966   created three constituencies. Legal notice number 370 of 2nd December 1986 defined the then Garissa constituency to comprise of three elective units. Legal Notice No. 54 of 24th September 1996 refers to existing administrative units and boundaries, a position also stated in Legal notice number 14 as well judgement rendered in pet no 94 of 2012.

Petitioners' Advocates' submissions

15. The petitioners counsel submitted that the boundary review for Garissa County was conclusively settled by Legal Notice No. 12 of 2012 and petition No. 94 of 2012, hence the purported creation of the administrative units must conform with the law and the said judgement.

16. Counsel also questioned the recruitment of chiefs and assistant chiefs restricting applicants to the Garissa Township yet Abdisamit location and Aulia and Alago sub-locations lie in Dadaab Sub-County, and that the said units were created without public participation.

First and Second Counsels'  submissions

17. Counsel urged the court to be slow to enter into a constitutional arena of another state body,[3]that the petitioner is driven by personal interests, and insisted that the said administrative areas were created in accordance with the law and that public participation does not mean all must be present[4] nor has the petitioner shown any prejudice.

Fourth Respondents' Advocates submissions

18. Counsel submitted that the petition is grounded on a misapprehension of what constitutes administrative and electoral boundaries and that this petition  was file long after the said areas were created and ought to be dismissed.

Fifth Respondents' Advocates submissions

19. Counsel submitted that no remedy is sought against the  fifth Respondent, and that the decision in Pet. No. 120 of 2012 was overturned on  appeal.

Sixth Respondents' Advocates submissions

20. The sixth Respondents counsel  supported the petition and submitted that under the repealed constitution, there was a distinction between  the electoral boundaries and administrative boundaries[5]and that constituency boundaries have no relationship with administrative boundaries,[6]that article 6 (1) of the constitution recognizes counties as the administrative units, and that on 27th November 2010, the I.I.B.R.C. submitted its first review which determined the names and details of the 290 constituencies and the delimitation  extended beyond electoral units.

21. Counsel submitted that by a Gazette notice No. 14 of 2012 of 6th March 2012, 80 constituencies were created. The legality of the said notice was challenged in petition no. 94 of 2012 and the courts finding with regard to Garissa county was Alango-Arba location be removed from Sankuri Ward in Balambala Constituency and transferred to Dertu Ward in Dadaab Constituency and Dertu Ward to comprise of Alango Arba nd Dertu sub-locations, hence the recruitment of the administrative officers ought to conform with the electoral administrative boundaries in Legal notice No. 14 of 2012 as amended by the High Court and Court of Appeal.

22. Counsel cited the objects of article 174 of the constitution which include public participation and article 189 on the co-operation between national and county governments. In creating the said units, the first Respondent failed to consider that the existence of an administrative centre at Dertu Divisional Headquarters, 30 km from Abdisamit while Garissa Town is over 70km away and that Lago Sub-Location cannot be located in Modika location, Garissa Town,  27KM away but should be in Alongo-Arba location barely 18km away

Eight Respondents' Advocates submissions

23. Counsel submitted that the National Government  Co-ordination Act[7] grants powers to the National Government to create service delivery co-ordination units[8] and that administrative units are not the same as electoral units, hence the eighth Respondent has no role in creation of administrative units, thus the issues raised in this case are not within the purview and mandate of the eight Respondent. Further, in the event the court finds otherwise, then the issues are outside the jurisdiction of the court.[9]

24. Counsel also submitted that the issue raised herein are res judicata, the eight Respondent is not a proper party,  and that no relief has been sought against the eight Respondent.

Analysis of the law, facts, issues and authorities

25. The first and second Respondent cited sections 2, 17 and 31 of the sixth Schedule of the constitution. I need not mention that Rule 7 (1) of Part two of the sixth schedule to the constitution of Kenya 2010, entitled "Existing  Laws" provides that:-

(1) "All law in force immediately before the effective date continues in force and shall be construed with alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this constitution."

26. It follows that all laws must conform to the constitutional edifice and further the actions challenged in these proceedings must  as of necessity pass the constitutional test.

27. The first issue to address is whether this case is res judicata. Its trite law that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature final and conclusive, the judgment or ruling is res judicata. If in any subsequent proceedings (unless they be of an appellate nature) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment is called in question, the defence of res judicata can be raised. This means in effect that the judgment can be pleaded by way of estoppel in the subsequent case.

28. As Somervell L.J. stated [10] res judicata covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

29. The decision referred by the Respondents was rendered in   R vs. Independent Electoral and Boundaries Commission & Another ex parte Councillor Eliot Lidubwi Kihusa & 5 Other.[11]It involved several consolidated Judicial Review Applications  among them No. 120 of 2012 in which the dispute involved  delimitation of boundaries of Balambala and Dujis constituencies of Garissa County. I find it useful to examine the facts in the said case, the decision rendered and the appeal decision to satisfy myself whether or not this case is indeed res judicata.

i. The applicants in the said case were aggrieved because the constituency and ward names and details of Garissa County had been altered allegedly without any demand and without realistic justification for creating the new Balambala constituency, and moving the Alango-Arba and Medina Wards to that new constituency. The petitioners wanted the decision to move Alango-Arba and Medina wards to Balambala reversed, Dujis constituency to be renamed Garissa township since Dujis sub-location was now in Balambala constituency, and that Legal Notice No. 14of 2012 be amended to incorporate their views. It was the petitioners’ case that moving them to Balambala meant that they would not be able to freely exercise their political and social rights, and that they will be a minority voting bloc.

ii. The petitioners in the said case contended that the IEBC decision  had failed to take into account community of interest, historical, economic and cultural ties of the people of the Auwliyahan clan and the people of Garissa County in general; that the decision therefore generated unnecessary political and social tensions in Garissa County and that the National Assembly resolved that the decision to move Medina and Alango-Arba to the new Balambala constituency be reversed.

iii. I.E.B.C. maintained that the Abduwak, Auwliyahan and Abdalla clans are one people of the Ogaden clans of the Ogaden community, that they are the same people with similar historical, economic and cultural ties. There were no distinguishing features save for the fact that they all belong to different sub-clans. Hence, in order to demonstrate that the community interests of the Auwliyahan clan were not considered, they have to establish that the Auwliyahan clan has a common grievance that is not shared by the members of the other clans who constitute Balambala constituency.

iv. Further, that the sub-clans all belong to the Ogaden community, and are therefore not entitled to a distinct electoral unit. The IEBC also averred that the political interests of the inhabitants of Alango-Arba would be protected whether it forms part of Balambala or is transferred to Dadaab constituency.

v. The reasoning of  IEBC for departing from the views given at the public hearings on the 16th of January 2012 and the resolution by Parliament to reverse the move by Medina and Alango-Arba to the new Balambala constituency was that the population of Balambala Constituency would fall below the minimum threshold of 79,883 for sparsely populated areas. If Medina and Alango-Arba sub-locations are removed from the proposed Balambala constituency, its population would be 73,109.

vi. The court noted thatthe basis of the sub-division of Lagdera and Dujis Constituencies to form Balambala and Dadaab Constituencies was a carefully negotiated settlement between the clans of Garissa County and further the court took cognizant of the fact that clan interests form a strong community of interest in Garrissa County and it was incumbent on the IEBC to explain why it departed from this settlement, particularly in view of the provisions of section 2 of the Fifth Schedule to the I.E.B.C. Act which did not require that demographic equality be obtained instantly while conducting the first review. Article 89(7) also required that the population quota be obtained progressively.

vii. The court noted that IEBC should have considered the proposal to have Dujis Constituency renamed Garissa Township; since Dujis sub-location is now in Balambala, and retaining the name Dujis for the constituency would be misleading and Article 89(8) gave the IEBC mandate to alter names of wards where necessary. The court also found that it should have exercised that discretion in this case. Hence, the court find that the claim to be genuine and uphold the same and ordered as follows:-

a. That Dujis Constituency be renamed Garissa Township Constituency.

b. That Medina sub-location be and is hereby removed from Sankuri Ward in Balambala Constituency and transferred to Galbet Ward in Dujis Constituency.

c. Galbet Ward will now comprise the following sub-locations; Galbet and Medina sub-locations with a population of 43,244.

d. That Alango-Arba sub-location be and is hereby removed from Sankuri Ward in Balambala Constituency and transferred to Dertu Ward in Dadaab Constituency.

e. Dertu Ward will now comprise the following sub-locations; Alango-Arba and Dertu with a population of 15,013

f. Sankuri Ward will now comprise the following sub-locations; Balicha, Simbir, Sankuri, Raya, and Athleleyley with a population 10,719

g. Legal Notice Number 14 of 2012 be and are hereby amended to this extent.

h. The maps of Dujis, Balambala, and Dadaab Constituencies in Vol III of the IEBC Final Report be and is hereby altered and amended to reflect the above changes and position.

i. No order as to costs.

30. Evidently, some of the parties in the consolidated Judicial Review cases appealed to the court of appeal culminating in the decision rendered on 19th April 2013 in  Peter Odoyo Oganda & 9 Others vs Independent Electoral and Boundaies Commisson of Kenya & 14 Others.[12]  My reading of the court's decision is that the court  did not annul the entire judgement in the consolidated cases. The court of appeal while allowing the appeal set aside the decision of the High Court relating to the determination of IEBC naming Suba North and Suba South constituencies as published in L.N. No. 14 of 2012 on 6 March 2012 is upheld.

31. Three things are clear in the court of appeal determination. One, not all the parties in the consolidated Judicial Review applications appealed against the High Court decision. Second, the high court decision was set aside with the result that the determination of IEBC naming Suba North and Suba South constituencies as published in L.N. No. 14 of 2012 on 6th March 2012 was upheld. Third, the appeal did not relate to the finding relating to the constituencies the subject of this petition. The effect is that the High court decision relating to the issues before now still stands contrary to the position advanced by the Respondents counsels except the 8th Respondent's counsel whose correctly construed the said decision.

32. The other court of appeal decision  touching on the consolidated Judicial Review applications is the court of appeal decision rendered in  Shaban Mohamed & 2 Others vs The A.G & 3 Others[13] which arose from JR. No. 94 of 2012. The case before me  was J.R No. 120 of 2012, hence the court of appeal decision rendered in an appeal arising from J.R. No. 94 of 2012 does not apply to the present case whose issues were determined in J.R. No. 120 of 2012. There is nothing to show that the decision in J.R. No. 120 of 2012 was appealed against.

33. Since no appeal was filed against the decision in J.R. No. 120 of 2012, it follows that the decision of the High Court still stands. On this ground alone the first Respondents decision to create the said administrative units violates the said court decision, hence, on this ground alone, this petition succeeds.

34. Regarding the issue whether or not the first Respondent acted within the confines of the law while creating the said administrative units, Section 4 of the National Government Co-ordination Act[14] offers the guiding principles. It provides in clear terms that:-"In fulfilling its mandate, the national government shall act in accordance with the national values and principles of the Constitution in particular, those set out in Articles 10, 189, 201(d) and 232.

35. Article 10 (1)  of the constitution provides that "The national values and principles of governance bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions.

36. Sub-article (2) (a) and (c) provides that "The national values and principles of governance include— (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;  (c) good governance, integrity, transparency and accountability.

37. Article 189 (1) providesinter aliathat the Government at either level shall— (a) perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level, and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level.

38. From the averments and arguments rendered by the parties, I am not satisfied that the constitutional  and statutory provisions outlined above were complied with. In particular, there appears not to have been proper public participation.

39. Article 10 of the Constitution expressly provides that public participation is one of the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions. As was appreciated by the majority In the Matter of the Principle of Gender Representation in the National Assembly and the Senate:-[15]

“Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground situations, and of such open texture in their scope for necessary public actions. A consideration of different constitutions are highly legalistic and minimalistic, as regards express safeguards and public commitment. But the Kenya Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a constitution takes such a fused form in its terms, we believe, a court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, the norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”

40. The South African Constitutional Court in Doctors for Life International vs. The Speaker of the National Assembly & Others[16]held  that:-

“The phrase “facilitate public involvement” is a broad concept, which relates to the duty to ensure public participation in the law-making process. The key words in this phrase are “facilitate” and “involvement”.  To “facilitate” means to “make easy or easier”, “promote” or “help forward”. The phrase “public involvement” is commonly used to describe the process of allowing the public to participate in the decision-making process.  The dictionary definition of “involve” includes to “bring a person into a matter” while participation is defined as “(a) taking part with others (in an action or matter);…the active involvement of members of a community or organization in decisions which affect them”.  According to their plain and ordinary meaning, the words public involvement or public participation refer to the process by which the public participates in something…it is clear and I must state so, that it is impossible to define the forms of facilitating appropriate degree of public participation. To my mind, so long as members of the public are accorded a reasonable opportunity to know about the issues at hand and make known their contribution and say on such issues, then it is possible to say that there was public participation.”

41. Sachs, J. in the South African case of theMinister of Health vs. New Clicks South Africa (Pty) Ltd:-[17] observed:-

“....... 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 issue and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case.” [Emphasis supplied]

42. To me, what appears to be the correct approach in matters of public participation was well captured in Robert N. Gakuru & Others vs. Governor, Kiambu County [18]it was held that:-

“….Public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively.”

43. The essence of public participation was captured in the case of Poverty Alleviation Network & Others vs. President of the Republic of South Africa & 19 Others,[19]  in the following terms:-

“…engagement with the public is essential. Public participation informs the public of what is to be expected. It allows for the community to express concerns, fears and even to make demands. In any democratic state, participation is integral to its legitimacy. When a decision is made without consulting the public the result can never be an informed decision.”

44. I am not persuaded that there was any serious engagement with the public. The earlier Judicial Review proceedings shows the public expressed their concerns and the court made a determination on the matter.  The matter was determined by the court. But clear the  decision of the court decision was disregarded.

45. In the  Matter of the Mui Coal Basin Local Community[20]  a three-judge bench of the High Court considered relevant case law, international law and comparative jurisprudence on public participation and culled the following practical elements or principles which both the Court and public agencies can utilize to gauge whether the obligation to facilitate public participation has been reached in a given case:-

a.First,it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter.  It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.

b. Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not.  The only test the Courts use is one of effectiveness.  A variety of mechanisms may be used to achieve public participation.

c.Third,whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information.  See Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012).  In relevant portion, the Court stated:

“Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them.”

d.Fourth, public participation does not dictate that everyone must give their views on the issue at hand. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, must, however, 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: 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.

e.Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive.  However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme.  The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.

f.Sixthly,the right of public participation is not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.

46. I am not satisfied that there was proper public participation in the manner in which the challenged decision was made.

47. It has not been shown that the first and second Respondents exercised their mandate as provided under the law. An administrative  decision can be challenged  for illegality, irrationalityand procedural impropriety.A close look at the material presented before me demonstrates absence of adherence to the law and disobedience of a court decision.  The decision is illegal or ultra vires. Thus, there is a basis for granting the judicial review orders sought.

48. The grant of the orders or certiorari, mandamus and prohibition is discretionary. The court is entitled to take into account the nature of the process against which judicial  review is sought and satisfy itself that there is reasonable basis to justify the orders sought.Upon analysing all the material before me and upon considering the arguments advanced by both sides, I find that the petitioner has satisfied the threshold for this court to grant the orders  of certiorari and prohibition.

49. On the alleged recruitment of the chief and assistant chief, it is not clear from the pleadings or the submissions what the current position is on the issue. It is not clear whether the recruitments took place,  nor would it be proper for me to issue orders which may affect persons who are not parties to this petition. Hence, I prefer to error on the side of caution, and decline to grant an order which may affect the rights of a person or persons who are not parties to this petition.

50. Article 47 of the constitution codifies every person's right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.[21]Further there is a right to be given reasons to any person who has been or is likely to be adversely affected by administrative action.[22]As stated above, the decision complained of was undertaken in violation of  court decision and to me the same is not grounded on the law.

51. In view of my conclusions herein above, I allow the petition order as to follows:-

a. A declarationbe and is hereby issued that the first Respondent violated  the provisions of Articles 10, 189, 201(d), 232,  47, 159 of the Constitution of Kenya 2010,  the guiding principles in section 4 of the National Government Co-ordination Act by purporting to create new administrative units in violation of the law and disregarding the court decision rendered in J.R. No. 120 of 2012.

b. An order of certioraribe and is hereby issued quashing the decision of the Ministry of interior and coordination of national government contained in the advertisement dated 15th May 2015 Ref: DC/HR/1/30/105 relocating:-

i. Abdiamit location to the Central Division of Gaissa Township Constituency from Dertu Division in Daadad Constituency wthin Garissa County.

ii. Auliya Sub-location to Abdisamit in Sankuri Division in Balambala Constituency from Detu Location in Dertu Diccion in Daadab Constituency in Garissa County.

iii. Laago Sub-LOcation to Modika Location, Central Division from Alango Arba Location in Dertu Division/Ward in Dadaab Constituency in Garissa County.

c. An order of mandamus be and is hereby issued  directing the first and second Respondents to comply with the decision rendered in JR No. 120 of 2012 in a consolidated judgment in JR No. 94 of 2012.

d. No order as to Costs.

Orders accordingly.

Dated  at Nairobi  this4thday ofOctober2017

John M. Mativo

Judge

[1] R vs Independent Electoral and Boundaries Commission & Another ex-parte Councillor Eliot Lidubwi & 5

Others {2012}eKLR

[2] Ibid note 1

[3] Counsel cited Kenya Youth Parliament & 2 Others vs A.G & Another, NBI Pet No. 101 of 2011

[4] Consumer Federation of Kenya (CFEK) vs Public Service Commission et No. 263 of 2013 {2013}eKLR

[5] Counsel cited sections 42 & 42 (3) (f) of the Repealed constitution

[6] Counsel cited Michuki & Another vs A.G & Others {2003}

[7]Act No. 1 of 2013

[8] Counsel cited section 14 (3) of the Act

[9] Counsel cited  Article 89(2), (3) of the constitution

[10] In Greenhalgh v Mallard (1) (1947) 2 All ER 257

[11] {2012}eKLR

[12] {2013}eKLR

[13] civil Appeal No. 281 of 2012

[14] Act No 1 of 013

[15] Sup. Ct. Advisory Opinion Appl. No. 2 of 2012 at para 54

[16] (CCT 12/05) [2006] ZACC 11; 2006 (12) BCLR 1399(CC); 2006 (6) SA 416(CC)

[17] {2005} ZACC

[18] {2014} eKLR

[19] CCT 86/08 [2010] ZACC 5

[20] {2015} eKLR

[21] Article 47(1) of the Constitution of Kenya, 2010

[22] Article 47(2) of the Constitution of Kenya, 2010