Benson Okera Magana, Abdi Hussein ,Nathan Lugaka Nunu ,David Agesa Wycliffe A. Asuga ,Absalom M. Ambaka ,Khalaf Abdi Hassan, Abdi Fata Hasan ,Solomon Ondego Silingi ,Beatrice Ovoleza Mkuzi ,Geoffrey Omambia Moseti, Dennis Omwoyo Onchieku, Fatuma Mohamed Hassan v Migori County Public Service Migori County, County Assembly Service Board Migori County & County Government Migori [2017] eKLR [2017] KEHC 10129 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CONSTITUTIONAL PETITION NO.9 OF 2017

FORMERLY MIGORI CONST. PETITION NO.10 OF 2015

FORMERLY KISII CONST. PETITION NO.34 OF 2013

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF THE COUNTY GOVERNMENT ACT OF 2012

AND

IN THE MATTER OF DEVOLVED GOVERNMENT ACT

BETWEEN

BENSON OKERA MAGANA................................1ST PETITIONER

ABDI HUSSEIN....................................................2ND PETITIONER

NATHAN LUGAKA NUNU.....................................3RD PETITIONER

DAVID AGESA........................................................4TH PETITIONER

WYCLIFFE A. ASUGA...........................................5TH PETITIONER

ABSALOM M. AMBAKA......................................6TH PETITIONER

KHALAF ABDI HASSAN.......................................7TH PETITIONER

ABDI FATA HASAN................................................8TH PETITIONER

FATUMA MOHAMED HASSAN...........................9TH PETITIONER

BEATRICE OVOLEZA MKUZI...........................10TH PETITIONER

GEOFFREY OMAMBIA MOSETI........................11TH PETITIONER

DENNIS OMWOYO ONCHIEKU........................12TH PETITIONER

SOLOMON ONDEGO SILINGI............................13TH PETITIONER

VERSUS

THE MIGORI COUNTY PUBLIC

SERVICE MIGORI COUNTY...............................1ST RESPONDENT

THE COUNTY ASSEMBLY

SERVICE BOARD MIGORI COUNTY................2ND RESPONDENT

THE COUNTY GOVERNMENT MIGORI............3RD RESPONDENT

RULING

1. By an application dated 23/12/2013 the petitioners seek a) a declaration that the appointment of the Members of Migori County Public Service Board and Migori County Assembly Service Board did not follow an open competitive process and that its composition or constitution does not meet the constitutional threshold; b) An order prohibiting the Migori County Public Service Board and Migori County Assembly Service Board from further undertaking their duties and responsibilities under the County Government Act.

2. It is the petitioners’ case that the appointment and composition of members of the two boards do not meet the constitutionally set values and principles of governance and public service set under Articles 10 and 232 of the Constitution of Kenya.  They state that the County Public Service Board comprises 6 members out of which five from the Luo ethnic community and only one is from the Kuria ethnic community.  The County Assembly Service Board comprises 6 members out of which 4 are from the Luo Community and 2 from the Kuria ethnic community.  Further, the County Public Service Board has employed –

a. 12 Chief Officers out of which 10 are from the Luo ethnic community and 2 are from the Kuria ethnic community.

b. 14th Directors in charge of various ministries out of which 10 are from the Luo Community and 4 are from the Kuria Community.

c. 8 Sub-County Administrators out of which 6 are from the Luo Community and 2 are from the Kuria Community.

d. 40 Ward Administrators out of which 28 are from the Luo ethnic community and 12 from the Kuria ethnic community.

e. 12 staff members out of which 10 are from the Luo ethnic community and 2 are from the Kuria community.

f. 10 Executive Committee Members out of which 7 are from the Luo Community, 2 are from the Kuria Community and 1 from the Luhya community.

g. The ratio of County assembly staff is given as 80% Luo and 20% Kuria.

3. It is their contention that in making the appointments, the County Public Service Board and the County Assembly Service Board have failed to be transparent and follow the laid down procedures of short listing the candidates and advertising interviews of the short listed candidates, thereby offending the provisions of Section 66 of the County Government Act.  They refer to annextureBOM 1, (whose print is in font size 2) showing that out of 2550 employees of the County Government as at 26th July 2016, the number of Luos stood at 1962, Kuria 361, Kisii 169, Somali 1, and Luhya 59.

4. They drew the court’s attention to Section 58 (1) (c) of theCounty Government Act (2012)which provides:-

“The County Public Service Board shall comprise among other members, a certified secretary of good professional standing nominated and appointed by the Governor with approval of the County Assembly who shall be secretary of the Board.”

5. The petitioners contend that the Migori County Public Service Board is operating without the Secretary – reference is made to Kenya Gazette Notice No.10704 dated 2nd August 2013.

6. With regard to the composition of the County Assembly Board, it is their contention that Section 12 (3) (a) (b) (c)and (d)and Section 12 (4) spell out who ought to form member of the County Assembly.

7. Their argument is that since the Speaker is a Luo, the Leader of Majority is a Luo, the Leader of Minority is a Kuria, then under Section 12 (1),one other appointee from the Public ought to have been picked from the minority tribes or the marginalized groups.  However the person who was appointed is from the Luo community as demonstrated in the Kenya Gazette Notice No.8286dated 10th June 2013(Exhibit BOM 5).

8. It is further pointed out that although under Section 12 (4)“the County Assembly Clerk shall be the Secretary to the County Assembly Board, the gazette notice referred to indicates two persons as secretaries, namely AKOTH NGERE (Interim Clerk of County Assembly, Secretary to the Board; and PATRICK O. WAKINE (Interim Clerk of County Assembly).

9. The petitioners who are residents of MIGORI County argue that the appointments do not reflect the national values and principles of governance being inter aliathe participation of the people, social justice, inclusiveness, non-discrimination, protection of the marginalized and nominees, transparency, accountability as well as representation of and equal opportunities to all communities.

10. They pointed out that the minority ethnic communities comprising the Luhya/Maragoli, Kisii and Somali constitute 20% of the Migori County population, have been left out of governance and the representation of the Migori County Government is dominated by the Luo and Kuria communities to the detriment of the minority communities.

11. They perceive the appointments to be discriminating and fear that such approach may lead to disharmony, discontent, imbalance in development and inhibited growth in the concerned areas as the powers that be in the county will shun any interaction with communities perceived not to be supportive or not co-operative with the county government.

They give a breakdown of the Migori populace as forms –

Luo -----------------50%

Kuria ---------------- 30%

Luhya --------------- 12%

Kisii/Somali ---------- 8%

which translates to 20% of the population being left out of governance issues. This is what forms the basis of this petition.

12. In opposing the petition, and arguing that the two boards are properly constituted, the respondents filed grounds of opposition stating that the petition is a gross abuse of the court process and the petitioners lack the requisite locus to institute the proceedings as they do not have instructions from their purported communities.  The petition is described as failing to meet the requirements of Article 165of the Constitution of Kenya as the petitioners have not demonstrated that there was a violation or infringement of their rights.

13. It is further stated that the petition raises purely administrative issues to be handled by the County Assembly Service Board of Migori County and Migori County Public Service Board, and not this court.  The petitioners are accused of failing to properly demonstrate that the demographic pattern in the county did not include other communities.

14. The respondents insist that all the requisite procedures and due process of law was followed by the 1st respondent in the recruitment exercise, and the interviews were properly conducted, and in accordance with the provisions of the Constitution and the County Government Act 2012.

15. The respondents’ contention is that the communities cited in the petition exist in Migori County just like any other County within the Republic of Kenya composed of all communities and Migori is not exceptional – they are entitled to competitive employment like any other citizen based on merit and not preferential treatment.  The respondents pointed out that there was no evidence to prove that any member of the said communities with qualification, applied for the advertised jobs, shortlisted, interviewed, passed but was rejected.  The petitioners are described as mere busy bodies who are out to waste the court’s time.

16. In replying affidavits by CHRISTOPHER RUSANA, the County Secretary of Migori County, he deposes that the petition is mischievous and is intended to paralyze the operation of Migori County Public Service Board and Migori County Assembly as well as Migori County.

He insists that the Public service Board’s membership is properly constituted because an advertisement was made in the daily Nation Newspapers of 13th and 14th September 2013 and interested persons applied for the vacancies of various posts – all Kenyans from all walks of life were allowed to and called upon to apply for the positions.

17. Thereafter those who applied were shortlisted for interview as shown in Exhibit CR3,and there was no complaint lodged about impropriety of the process.  He has given the ethnic composition of Migori County as follows:-

Luo -------------------------------------------- 40%

Kuria ------------------------------------------ 23 %

Suba ------------------------------------------- 20%

Luyha, Kisii, Somali and others ------------ 17%

Total ------------------------------------------- 100%

The ethnic composition at the Public Service Board Migori County is given as:-

Luo --------------------------------- 3 = 50%

Suba -------------------------------- 1 = 16. 66%

Kuria ------------------------------- 1 = 16. 66%

Somali ----------------------------- 1 = 16. 66%

Total ------------------------------- 6 = 100%

The ethnic composition of the Directors of Ministries within Migori County are given as –

Luo ----------------------------------- 7 = 50%

Kuria --------------------------------- 2 = 14%

Suba ---------------------------------- 3 = 21. 4%

Luhya, Kisii, Somali & others --- 2 = 14. 3%

Total -----------------------------------12 = 100%

The ethnic composition of Migori County Executive Committee members is given as –

Luo ------------------------------------ 5 = 50%

Kuria ---------------------------------- 2 = 20%

Suba ----------------------------------- 1 = 10%

Luhya, Kisii, Somali, Nubians ----- 2 = 20%

Total ------------------------------------ 10 = 100%

18. The deponent further clarified that the Migori County assembly service Board comprises a Chair, Vice Chair, one member of the board and the secretary, who are representatives of the various offices spelt out under Section 12 (3) (a) – (c)and (4).He pointed out that under Section 12 (3) (d) the Assembly has an option to nominate or appoint only one position.  By a news paper advertisement of 15th April 2013 placed in the Daily Nation, the vacancies were made known to all Kenyan from all walks of life to apply for the positions (See Exhibit CR 2)

19. Subsequently there were 21 applicants and after due diligence and taking into account their competence the board shortlisted 5 names for interview.  The committee on appointments sat, interviewed and vetted the applicants on 29th May 2013.

20. Members of the public were allowed to submit their written memorandum, petitions and complaints relating to any of the shortlisted candidates not later than 29th May 2013 – none was presented – and at least not from members of the Luhya, Maragoli, Kisii, and Somali communities.

21. After the vetting and interviews the board prepared a report which was tabled before the National Assembly for approval on 6th June 2013 vide gazette notice No.8286.  Thereafter the members were sworn on 24th June 2014, and the one position allowed for nomination was done.

The applicants are accused of engaging in spreading rumours about ethnic bias with a view to getting cheap gain from their acts of malice.

22. In a further affidavit by the 1st petitioner, he contends that the list of all the employees in the two Boards support his position that the minority ethnic communities are not represented in the two boards yet they form 20% of the populace being 12%.  Luhya had 8%, Kisii/Somali and Asians

23. While conceding that advertisements were placed for the vacant posts, the petitioners say it is not clear when short listing was done and when the candidates were interviewed saying the exercises were conducted stealthily and without adhering to set down procedures.

He listed the following applicants who were not considered for the employment.

1. PUBLIC SERVICE BOARD

a. Dr. Aggrey Idagiza Akidiva, a medical director from the Luhya Community.

a. George Hezron Igoha a holder of degree in Theology.

b. Boaz Abwao Kwendo a holder of degree in Theology.

c. County Executive Committee

d. Alfred Mdeiz (B.A.M.A. PPM, PhD (Reading)

2. CHIEF OFFICERS

a. John Agesa (B.A.M.A.) (Education)

b. Hamisi Stephen (B.A., M.A. PHD (Reading)

c. Graham Kagali (BA, CPA5)

3. DIRECTORS OF MINISTRIES

a. John Indiazi (BA Ed)

b. Boaz Abwao (BA Theology)

c. John Agesa (BA A.A. Ed)

d. Paul Langa (B.A. MA Ph D Ed)

e. County Assembly Service Board

f. Florence G. Ongwana (B.A. MA)

g. Millicent Mulong (B.A. MA Ed)

h. Fatuma Mohamed (B. Comm)

i. Sub County Administrators

j. Solomon Omwenga (B. Com)

k. John Morara (CBA)

l. Mohamed Hassan (BA)

m. Paul Momanyi (BA)

24. The 1st petitioner refers to a time when he led a delegation of members from his community to a meeting with the Governor of Migori County, and the Luhya/Maragoli and Kisii Communities made their proposals on how they would best be involved in governance of the County (a copy of the petition is annexed as BOM 7)

25. In the written submission the petitioners’ counsel added names of individuals who applied for position of Ward Representatives namely:-

a. Oloo Keboko – Dip (Education)

b. Japheth Aababwi – Dip (HRM)

c. Samwel Rumwamu – BA (IT)

d. James Awmasa – Dip (IT)

e. Suleiman Abdi – Dip (HRM)

f. Boaz Abwao Kiyanda – Degree Theology

26. It was argued that the named individuals’ applications were never acknowledged.  Further that the County Assembly has a duty to come up with legislations to protect the minority by lowering entry qualifications for some vacancies where it is suspected that they may not meet the bar, in order to accommodate them.

27. The respondents are accused of failing to demonstrate the measures they have put in place when advertising for vacant posts in order to reach a wider population and in particular encourage the minority, to be included in governance.  Instead they placed stringent barriers to restrict the various vacancies.

28. In their written submissions, the respondents’ counsel has reiterated the contention that the petitioners lack locus standi to institute these proceedings as this is a representative suit yet none of them is an official of their respective communities, nor have they presented any proof of instructions from their purported communities to act as such.  The petitioners’ counsel has referred to the case of ANARITA KARIMI NJERU –VS- R. (1976-1980) KLR – 1272which stated that constitutional petitions must be pleaded with reasonable precision.  He argues that the petitioners have not alleged or proved that a particular person was denied appointment on account of their ethnicity.

29. Counsel submits that citing omnibus provisions of the Constitution does not provide particulars of the alleged violations, and this court ought to find that the petition as incompetent and fatally defective.

30. Counsel also contends that the court does not have jurisdiction to review and set aside the appointments because these are purely administrative matters to be handled by the County Government and not the High Court.  He points out that under Section 12 (5) (a-c)of the County Government Act, a member of the County Board can only vacate the board under those provisions, while a member of the County Public the same is governed bySection 58 (a)and(b).

31. Counsel urged this court to be guided by the case of Community Advocacy and Awareness Trust and others –vs- The Attorney Generalconcerning appointment to the National Land Commission where it was stated that courts may not interfere with decisions of other organs and government in the absence of illegality:-

“… the court must of course be careful not to usurp the powers and functions of the various constitutional and statutory boards …. These boards have carried out their functions in accordance with the prescribed procedures and I am satisfied that in this case the process meets constitutional muster.”

32. It was further submitted that what ought to be considered in appointing persons to State offices is spelt out under Chapter 6of the Constitution of Kenya to include personal integrity, competence and suitability and there should be no partiality.  He referred to the case of JOHN KIPNGENO and Others –vs- NKU COUNTY ASSEMBLY (Nku Petition No.23 of 2013 consolidated with Petition No.25 of 2013)set out the relevant factors to be considered in nominate to include:-

Procedure used to arrive at nomination;

Any constitutional or statutory requirements relating to the office;

The suitability of the nominee.

33. It is argued that all the posts were advertised and the qualified candidates short listed and notified through the Daily Nation Newspapers, and there was no secrecy whatsoever.

34. Further, that the interviews were conducted in accordance with the provisions of the Constitution of Kenya and the County Government Act 2012 and positions filled in compliance with Section 12 (1) and (3) of the County Government Act.  Counsel points out that the advertisement of 15th April 2013 in the Daily Nation Newspaper set out the requirements for applications to be:-

1. A Kenyan citizen;

2. A member of Migori County;

3. Have knowledge and experience in public affairs;

4. Must have a degree in social sciences from a university recognized in Kenya;

5. Women are especially encouraged to apply;

6. Must not be a member of the County Assembly;

7. Meets the requirements of leadership and integrity.

35. Those who met the criteria set were interviewed and vetted, and the board prepared a report which was tabled before the County Assembly as provided under Section 12 (3) (d) of the County Government Act 2013 followed by gazettement on 21st June 2013 vide gazette notice No.826.

36. Counsel argued that there was no proof that all those who applied for the advertised jobs, interviewed and appointed to various positions were only Luos and Kurias and no application was received from members of the Luhya, Maragoli, Kisii and Somali groups despite the fact that the application was open to all Kenyans irrespective of their ethnic origins.

37. The application is faulted as simply intended to create animosity between the various ethnic communities within MIGORI County.

38. Counsel urged this court to find that the County Public Service Board is properly constituted as contemplated by Section 58 (1) (a) – (c) of the County Government Act 2012,and theCounty Assembly Service Boardis properly constituted as provided underSection 12of theCounty Government Act 2012. The issues for determination are:-

Whether the Petitioners have locus standi to institute these proceedings

39. Who are the petitioners?  In their petition they describe themselves as adult Kenyans of sound disposition, who are residents of Migori County.  Which communities in Migori County do they belong to?  It is not clear, and it would be dangerous to expect the court to try to match a name to an ethnic community as some communities in Kenya share names, and those with Muslim names need not necessarily be from the Somali Community.

40. The 1st petitioner in his supporting affidavit described himself as a former councillor of SUNA NORTH ward.

41. The respondents say the petitioners are mere busy bodies and are not even representative of, nor do they have the authority of the communities they purport to represent to file this petition.

42. The petitioners ground their petition positional in fulfillment of a constitutional duty.

Under Article 3 (1) of the Constitution of Kenya:-

“3 (1) Every person has an obligation to respect, uphold and defend this Constitution.”

This implies that whether the person who files such petition does so as the affected individual or whether they do not have the actual authority of those individuals is not fatal.

43. The petition is made pursuant toRules 23 and 24 of the Constitution of Kenya which falls under the Chapter on the Bill of Rights whose purpose is set out under Article 19 (2) as:-

“… recognizing and protecting human rights and fundamental freedom to presume the dignity of individuals and communities and to promote social justice and the realization of the potential of all human.”

44. I am persuaded it is in this spirit that the petitioners have come to court.  Are they busy bodies and divisive technocrats?  Article 22 (1) of the Constitution provides that:-

“22 (1) Every person has the right to institute proceedings claiming that a right or fundamental freedom in the Bill of Rights have been violated or infringed, or is threatened.

(2) In addition to a person acting in their own interest,

court proceedings under Clause (2) may be

instituted by –

(c)a person acting in the public interest.”

45. I hold and find that the petitioners are not busy bodies and have a constitutional right to pursue these proceedings.

ARE THE ISSUES PLEADED WITH REASONABLE PRECISION?

46. It is argued that the petitioners have not framed their case or complied with precision as required under the constitution and the court is urged to pay regard to the case of ANARITA KARIMI NJERU –VS- REPUBLIC (1976 – 1980) KLR 1272 which held that constitution petitions ought to be pleaded with reasonable precision and clarity so as to communicate the petitioner’s grievance.

47. The respondent’s counsel argues that the petitioners have merely cited omnibus provisions of the constitution without providing particulars of the alleged complaints, the manner of alleged infringements or the jurisdictional basis of the action before the court thereby rendering the petition incompetent and defective.

48. With the greatest respect to counsel, that is far from correct – the petitioners’ grievance is very clear – that the County assembly Service Board, and the County Public Service Board as constituted favours members of the LUO and KURIA communities to the exclusion of the minority communities in Migori County, and who are listed as the LUHYA, KISII, MARAGOLIand SOMALI ethnic communities.

49. Should the petitioners have cited all the statutory provisions under which their petition is pegged?  That would have been useful but it is not fatal – what is important is that they are able to communicate their grievance and the orders they seek.  In this they find refuge under Article 159 (2) (d) of the Constitution which provides that in exercising judicial authority the courts should not allow the presumed justice far to be hampered by undue regard to procedural technicalities.

50. What constitutes procedural technicalities has been addressed in the case of JAMES MANGELI MUSOO –VS- EZEETEE LTD [2014] e KLR as follows:-

“A technicality to me is a provision of law or procedure that inhibits or limits the direction f pleadings, proceedings and even decisions on court matters.  Undue regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and or procedural in nature.”

51. What the petitioners are asking this court to do is to make a declaration touching on the application or interpretation of the Constitution, the law and the implementation of public policy decisions.  This finds footing under Article 10 (2) of the Constitutionwhich sets out the natural values and principles of governance which included natural unity, equity, inclusiveness, equality, non-discrimination and protection of the marginalized, and good governance.

52. The petition clearly communicates that the complaint raised relates to minority communities within MIGORI County who perceive that their right to participate in the governance of the county has been violated by the shelved appointment of senior officers from mainly the Luo and KURIA communities?

53. This scenario was well thought out by the drafter of the constitution who apart from placing emphasis on the protection of minorities/marginalized required the state under Article 56 to take affirmative action designed at ensuring that minorities and marginalized groups are –

“56 (a) participate and one represented in governance and otherspheres of life;

(b) Are provided special (emphasis mine) opportunities for access to employment.”

54. Whereas the term minority community is not defined under Article 260 of the Constitution which deals with interpretation, I recognize that the issues that affect the minority is pegged to the fact that they are a relatively smaller population and are unable to fully participate in the governance of Migori County. The petition is therefore competent.

Does the court have jurisdiction to set aside the appointment?

55. On this limb the respondents’ counsels has insisted that the appointments to the two boards are purely administrative matters which ought to be handled by the County Government and not the High Court.  He argues that the appointees can only vacate office as provided under Section 12 (5) (a-c) of the County Government Act which provides that:-

“12 (5) A member of the county assembly service board shall

vacate office –

a. if the person is a member of the county assembly –

i)  at the end of the term of the county assembly; or

ii) if the person ceases to be a member of the county

assembly; or

b. if the person is an appointed member, on revocation of the person’s appointment by the county assembly; or

c. if the person is the Speaker, leader of majority party or leader of minority party when the person ceases to be such Speaker, leader of majority party or leader of minority party.”

56. Whilst for members of the County Public Service Board they can only be removed from office as provided under Section 58 (5) (a) and (b) which provides:-

“58(5) The members of the Board may only be removed

from office –

a. on grounds set out for the removal of members of a constitutional commission under Article 251 (1) of the Constitution; and

b. by a vote of not less than seventy five percent of all the members of the county assembly.”

57. In support of this position, MR. MWAMU referred to decisions in COMMUNITY ADVOCACY AWARENESS TRUST AND OTHERS –VS- THE A.G. AND OTHERS (2012)e KLRwhere it was stated that courts may not interfere with decisions of other organs of government in the absence of any illegality.

Also the case of JOHN WAWERU WANJOHI AND OTHERS –VS- THE A.G. (Consolidated with the case of KIPNGETICH MAIYO & OTHERS –VS- THE LAND COMMISSION SELECTION PANEL NRB (CONSTI. PETITION NO.373 OF 2012 and 426 of 2012)which in addressing the appointment to the National Land Commission, it was stated that:-

“the court must of course be careful not to usurp the powers and functions of the various constitutional and statutory bodies …. These boards have carried out their functions in accordance with the prescribed procedures and … the process meets constitutional muster.”

58. The petitioners’ counsel submitted that the court’s jurisdiction is conferred byArticle 23of theConstitutionwhich provides that:-

“23(1) The High Court has jurisdiction in accordance with Article 165, to hear and determine applications for redress of a demand, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights.”

This then leads to Article 165 (3) of the Constitution which gives the High Court unlimited jurisdiction in all criminal and civil matters and states thus:-

“165 (3) (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened.

Jurisdiction to hear any other question respecting the interpretation of this Constitution including the determination of –

“Any matter relating to constitutional powers of State organs in respect of county governments ….”

59. Would this jurisdiction be ousted by the views expressed by the Court of Appeal in the decision by Otieno (J), Anzangalala (J) and Kantai (J) to the effect that:-

“The court is not well suited to determine matters which are best discussed and agreed upon at a policy level in an environment that fosters public participation, consensus building and civic education.  It is possible that a set of principles developed over time will emerge as various cases going through the court process up to the apex court but one case or dispute cannot determine the whole course of how ethnic and regional diversity is to be achieved in public appointments.  In the case of Prinsloo –vs- Van Der Linde and Another (supra) at para. 20 the Constitutional Court of South Africa warned against making sweepy statements about different and complex arena of equality and discrimination.”

The Court observed that in view of the history of that country,

“all this reinforces the idea that this court should be astute not to lay down sweeping interpretations at this stage, but should allow equality doctrine to develop slowly and, hopefully, surely.  This is clearly an area where issues should be dealt with incrementally and in a case by case basis with special emphasis on the actual context in which each problem arises.”

60. When the Court of Appeal made these remarks, it was fully alive to the provisions of Article 165 (3) of the Constitution of Kenya.  I do not think the court was in any way purporting that the court lacked jurisdiction to address issues related to violation of fundamental rights but it was of the view that the courts must tread with caution to be alive to the reality in a country with 44 ethnic communities and where ethnicity, ethnocracy and politics are so intertwined and so volatile that it would perhaps be better to allow those with the politico-socio-administrative exposure to handle such issues  rather than applying a judicia-legal approach.”

61. Indeed the issue of ethnicity (which has imploded in Kenya) was a point of concern in the JOHN WAWERU WANJOHI case (supra) where the petitioners’ claimed exclusion of certain ethnic communities in the appointment to the National Land Commission and the Court stated as follows:-

“The petitioners seem to ignore the fact that the country has at least 42 ethnic groups and 47 counties.  The ethnic groups are not even homogeneous.  As provided in the constitution there can only be nine members of the Commission and I do not think it would be realistic to expect the commission to have representation of all the ethnic groups.  What the appointing authorities are required to do is to the best they can to accommodate the requirement of diversity.”

62. Certainly in the present case the members are skewed in the sense that the Luo and Kuria have the larger members, although there is a sprinkling of Somali, Kisii and Luhya.  What evidence is there that applications were most apart from the listed names?  But of greater significance is that the State is required to put in place affirmative action programmes designed to ensure that members are provided special opportunities.  Have those affirmative action programmes been put in place?  None was referred to by the petition.

63. This is why the respondents submitted that they followed the due process in advertising the positions, conducting interviews and vetting the candidates.

Further that the requirements were set out clearly in the Daily Nation of 15th April 2013 and which I have already alluded to in the earlier part of the judgment.

WERE THE LAID DOWN PROCEDURES FOLLOWED/

64. Would the spirit of diversity mean that standards are compromised?  It has not been demonstrated that those who were shortlisted had lesser qualifications than the persons the petitioners mentioned – indeed one of those listed in the petitioners’ affidavit did not meet the requirement.  There is no evidence that their applications if any were received by the County Assembly.

65. If affirmative action programmes had been set out in Migori County or by the National Government requiring lowering of qualifications for applicants from the minority community then there would be reason to cry foul.  As it is there is none and I need not belabor the matter.  Little wonder that the Court of Appeal at Kisumu remarked in Civil Appeal No.10 of 2014.  THE MIGORI COUNTY PUBLIC SERVICE MIGORI COUNTY AND 2 OTHERS –VS- BENSON OKARA MAGANA AND 11 OTHERSthat:-

“… We think that to expect a County to employ any person who has not applied for an advertised post or who does not exhibit any qualificationsfor that job, all because he is from an ethnic community would require an affirmative action to be pronounced in an Act of Parliament.”

66. The upshot is that the application has no merit and is dismissed.  This being litigation which exhibits public interest in nature and having been made under Article 22 of the Constitutioneach party shall bear its own costs.

Delivered and dated this 13th day of November, 2017 at Homa Bay

H.A. OMONDI

JUDGE