County Assembly of Mandera County v Governor, Mandera County & another [2020] KESC 57 (KLR)

County Assembly of Mandera County v Governor, Mandera County & another (Reference 1 of 2018) [2020] KESC 57 (KLR) (Civ) (23 January 2020) (Ruling)

County Assembly of Mandera County v Governor, Mandera County & another [2020] eKLR

Neutral citation: [2020] KESC 57 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Reference 1 of 2018

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

January 23, 2020

Between

County Assembly of Mandera County

Applicant

and

The Governor, Mandera County

1st Proposed Interested Party

County Government of Mandera

2nd Proposed Interested Party

Ruling

1. (Being an application by the Intended Interested Parties/Applicants seeking to be enjoined as Interested Parties in the Reference filed by the County Assembly of Mandera County for an advisory opinion under Article 163(6) of the Constitution as well as an application by the Intended Interested Parties/Applicants for the dismissal of the Reference)

2. Upon perusing the Notice of Motion dated 2nd August 2018 and lodged on 3rd August 2018 by the Governor, Mandera County and the County Government of Mandera, pursuant to the provisions of Section 25 of the Supreme Court Rules, 2012 seeking to be enjoined in the Reference as Interested Parties and also for dismissal of the Reference herein; and

3. Upon reading the Affidavit of Mr. Anzal Rashid Yarrow, the Legal Counsel, County Government of Mandera County, sworn on the 3rd August, 2018; and

4. Upon perusing the grounds adduced by the Applicants in support of the orders to be enjoined as Interested Parties wherein the 1st and 2nd Applicants, the Governor and County Government of Mandera County respectively, seek to participate in the Reference herein and submit to the Court on; (i) the procedure for appointment of Members of the Executive Committee; (ii) whether there is a lacunae in law where a County Assembly fails to approve the nominees for a County Executive Committee; and (iii) whether this is a matter that can be resolved by the advice of the Attorney General before approaching this Court; and

5. Upon considering the arguments made by the Proposed Interested Parties in which it is contended that the Applicants have a direct and legitimate interest in the present petition the 1st Proposed Interested Party being the appointing officer of the Members of County Executive Committee for Mandera, and the 2nd Proposed Interested Party being the County Government in respect to whom the appointees were being appointed; and

6. Upon further perusing the response contained in the Affidavit of Mohamed Adan Khaliff, the Speaker of the County Assembly of Mandera County, sworn on 28th September, 2018, in which it is contended that the interest of the Proposed Interested Parties are sufficiently represented in the Reference; that the Attorney General has already offered legal advice on the opinion being sought in this Reference and that Marsabit High Court Petition No. 7 of 2017 pending before that Court does not raise similar issues as those pending before this Reference; and

7. Upon considering that the 1st and 2nd Proposed Interested Parties, being the appointing officer of the Members of County Executive Committee and the County Government in respect of whom the appointees were being appointed respectively, will be prejudiced if they are not enjoined and that they have an identifiable stake in the matter in line with the criteria laid down in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No. 15 & 16 of 2015 (consolidated), [2016] eKLR; and

8. Having considered the Application, by a unanimous decision of this Court, we find that the prayer to have the Intended Interested Parties/Applicants enjoined as interested parties is merited and is consequently allowed; and

9. Further,noting that the Intended Interested Parties/Applicants have also prayed and submitted that the Reference herein ought to be dismissed because it is sub-judice a Marsabit High Court Constitutional Petition No.7 of 2018, Simba Hasheen Gellow vs The Honourable Governor of the County Government of Mandera and 2 others and that the Attorney General has already offered legal advice on the opinion being sought in the Reference; and

10. Notingthe response by the County Government of Mandera that Petition No. 7 of 2018 aforesaid does not raise similar issues as are being raised in the Reference and that the Intended Interested Parties/Applicants lack capacity to seek orders of dismissal of the Reference; and

11. [10] Having considered the said prayer, we unanimously find that a party yet to be enjoined in a matter such as the present Reference, lacks the capacity to seek any substantive orders in it and that the prayer aforesaid is premature, the Prayer for dismissal of the Reference is consequently struck out.

12. For reasons aforesaid, we now make the following orders under Rule 25 of the Supreme Court Rules, 2012:

Orders:(a)The Application dated 20th August, 2018 and filed on 3rd August, 2018 seeking joinder of the Governor, Mandera County and the County Government of Mandera as Interested Parties to the Reference herein be and is hereby allowed only in terms of prayer (i); and(b)For the avoidance of doubt, the second prayer seeking dismissal of the Reference herein is hereby disallowed for being premature.(c)There shall be no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JANUARY 2020. M. MWILU M. K. IBRAHIMDCJ&VP OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT....................................................................S. C. WANJALA NJOKI NDUNGUJUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT....................................................................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA