Githinji v County Assembly of Nakuru & 3 others; Wambui & 2 others (Interested Parties) [2023] KEHC 25503 (KLR) | Public Appointments | Esheria

Githinji v County Assembly of Nakuru & 3 others; Wambui & 2 others (Interested Parties) [2023] KEHC 25503 (KLR)

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Githinji v County Assembly of Nakuru & 3 others; Wambui & 2 others (Interested Parties) (Constitutional Petition 5 of 2023) [2023] KEHC 25503 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25503 (KLR)

Republic of Kenya

In the High Court at Nakuru

Constitutional Petition 5 of 2023

SM Mohochi, J

November 21, 2023

Between

Charity Njambi Githinji

Petitioner

and

The County Assembly Of Nakuru

1st Respondent

The Speaker, County Assembly Of Nakuru

2nd Respondent

The Clerk, County Assembly Of Nakuru

3rd Respondent

The Nakuru County Assembly Public Service Board

4th Respondent

and

Eddy Kiragu Wambui

Interested Party

Wilbur Onyango Amara

Interested Party

Glaris Chepkurui

Interested Party

Ruling

Introduction 1. This petition was filed on the 14th March 2023 under Certificate of Urgency and a Notice of Motion for interlocutory relief, supported by the sworn affidavit of Charity Njambi Githinji the 13th March 2023 and directions on the hearing and disposal of the interlocutory Application was issued on the 16th March 2023.

2. It is noteworthy that the Petition has been brought by Charity Njambi Githinji who described herself as a member of the public and resident of Nakuru County, an astute defender- of good governance, rule of law and defence of the constitution. That is all that the petitioner disclosed of herself in this matter.

3. The Notice of motion dated 14th March 2023 seeks the following reliefs:i.SPENTii.That, this Court be pleased to issue an order of stay stopping the 1st Respondent from considering, debating, voting and/or taking any steps on the report on the nominees to the County Assembly Service Board on the basis that the nominees recommended for appointment do not meet the qualifications of appointment to the office of the 4th Respondent being one man and one woman.iii.That, this Court be pleased to issue an order of injunction, restraining the Respondents from taking or conducting any step, decision, action, proceedings and/or making any determination in relation to the filing of the vacancies of the 4th Respondent pending hearing and determination of this application and substantive petition.iv.That, this Court be pleased to issue a status quo order in as afar as the composition of the 4th Respondent is concerned and allow the current office bearers to continue serving in that capacity pending the hearing and determination of this application and substantive petition.v.That, in the alternative this Court be pleased to issue an order of certiorari to bring before this Court for purposes of quashing the decision of the 2nd Respondent in adopting the Report on interviews for the position of County Assembly Service Board Members, Nakuru County Assembly made on the 14th of March, 2023. vi.That, such further orders and directions be issued to facilitate the just, expeditious and fair determination of this application and petition.

4. The Petitioner would appear very keen to file the petition just as the county assembly service board was adopting a report on the same day of the 14th March 2023.

5. On the 16th March 2023 this Court directed the Petitioner to serve the Respondents and Interested Parties enjoined suo motu by the Court.

6. On the 24th March 2023 the Court gave further directions to the Respondents with a hearing scheduled for the 30th March 2023.

7. By the 12th of May 2023 the Petitioner was yet to comply with the directions of the Court by either serving the Application upon the interested parties of filing its written submissions necessitating a further mention on the 25th July 2023 when the Court fixed a date for ruling despite the Petitioner failure to comply.

8. This Court has thus retired to prepare this ruling without the input of the Petitioner’s written submissions or the interested parties input and shall consider the Application based on the bare motion and the supporting Affidavit while the 1st and 4th Respondents dutifully complied and filed their written submissions on the 25th July 2023.

Petitioners Case 9. That, the Respondents are well aware of the law and procedure in the recruitment and filling of vacancies for the office of the County Assembly Service Board., which law and procedure is set in mandatory terms requiring strict adherence and compliance.

10. That, as a member of the public and a resident of Nakuru County, she has been an astute defender of good governance, rule of law and defense of the Constitution in County administrative processes in undertaking and implementing the various provisions of the law. As a result, she is aware that the 1st Respondent, acting together with the other Respondents commenced the process of filling the vacancies in the office of the County Assembly Public Service Board.

11. That, being interested in the proceedings as well as likely to be affected by the outcome of this process, she, through her Counsel on record, on the 9th of March, 2023, wrote to the 3rd Respondent invoking her right of access to information under Article 35 of the Constitution, requested to be and was supplied with long list of candidates, short list of candidates, Consultant Report; and Board Resolution.

12. That, upon scrutiny of the documents furnished she noted various inconsistencies and outright violation of the Constitution and various provisions of the law thus necessitating this Constitutional Petition with a view of protecting the Constitution as well as the legitimate expectation of the residents of Nakuru County and the entire Country at large.

13. That, the impugned process commenced on the 7th of February, 2023 when the 3rd Respondent issued a vacancy notice in the office of the 4th Respondent, which notice called for applications from members of the Public, being one man and one woman, to serve as members of the County Assembly Service Board pursuant to Section 12(3) (d) of the County Government Act, 2012.

14. That, this notice was followed by advertisements in two newspapers being the Standard and Daily Nation Newspapers of Tuesday, 7th of February, 2023, in compliance with the legal requirement calling for advertisements of vacancies in two newspapers of countrywide circulation.

15. That, the advertisements contained the requirements that interested applicants needed to meet including, the strict qualification requirements provided for under Sections 12 of the County Governments Act, 2012 as read together with Section 8 and 9 of the County Assembly Services Act No.24 of 2017, which sections provided for the following qualification criteria: -i.Must be a Kenyan Citizenii.Must be a resident of Nakuru County, with knowledge and experience in public affairs BUT not a member of the County Assembly.iii.Holds a degree from a University recognized in Kenyaiv.Has at least ten years' experience in Public affairsv.Meets the requirements of leadership and integrity in Chapter Six of the Constitution of Kenya, 2010.

16. That, as a result, she is aware that a total of 30 applications were received by the Respondent, wherein 17 were shortlisted with the 4th Respondent engaging external consultants to proceed with the rest of the recruitment exercise, which interviews were conducted on 2nd and 3rd of March 2023.

17. That, upon conclusion of the interviews, the External Consultant submitted its report to the Respondent, which report contained its findings and recommendations as to the most suitable candidates to fill both vacancies.

18. That, according to the report of the External Consultant under observations and recommendations, it was noted that 6 of the candidates had not attained the ten years’ experience after attaining the minimum academic requirement. The six candidates were:a.Eddy Kiragu Wambui- year of Graduation (2020)b.Wilbur Onyango Amara- Year of Graduation (2020)c.Ezekiel Kosgey Kesendany-Year of graduation (2016)d.Glaris Chepkirui-Year of graduation (2015)e.Peter Kipkemboi Korir-Year of Graduation (2016)f.Antony Kiprono Rotich-Year of graduation (2021)

19. That, however, and contrary to the expectation in light of the observation by the External Consultant, the External Consultant in forwarding its recommendation to the 1st Respondent, recommended names including those that had been identified as not having met the minimum set and mandatory qualification requirement of 10 years' experience. The external consultant recommended the following merit list in order of the most qualified candidates as follows:Merit list for menName ofCandidate MarksEddy Kiragu Wambui 88. 6%Allan Omabere Nyamache 85. 0%Joseph Macharia Mwangi 77. 6%Douglas Kipkurui Ayabei 76. 3%Wilbur Onyango Amara 74. 3%Dr. Zacchaeus Wanyoike 73%Merit List for Women:Name Of CandidateMonicah Cherutich 79. %Ann Wangeci Mwathi 71. 3%Florence Wambui Njoroge 65%Glaris Chepkirui 60. %

20. That, by including individuals that they had identified as having not met the minimum qualification requirements, the External Consultant, working together with the 1st Respondent, have infringed on the express requirements of the law and outrightly violated the Constitution and gone against the legitimate expectations of the Petitioner and the general Public.

21. That, the actions of the Respondents are not merited, lack legal backing and justification, are maligned with extensive elements of impropriety and is incapable of being cured save for being brought before this Honourable Court for intervention.

22. That, more pressingly, time is of essence in the questions at hand with the Report of the External Consultant set to be tabled before the 2nd Respondent for consideration and adoption on the 14th of March, 2023 and the actions of the Respondents read mischief and are an outright violation of the law, with the result being the appointment of unqualified persons to hold the two offices.

23. That, to this effect and time being of essence, this Court remains as the last and only holding fort against the actions of the Respondents since they have shown disregard for law and procedure in proceeding to table the report of the external Consultant before the Assembly and subsequently adopting the same.

24. That, if this Court does not intervene in the foregoing, it will set a dangerous and damaging precedent in the conduct of the affairs and processes of the Respondent in as far as the recruitment of public officers within the County Government and Assembly is concerned within the set legal parameters including obedience of laws governing county governments, just and procedural operation of law not forgetting the net effect on the capacity of the County Administration being that the illegal actions touch on critical offices within the County Government.

25. That, the Petitioner stands to suffer irreparably if the actions of the Respondents are not restrained in the manner sought in the Notice of Motion herein. This Application and Petition fall squarely within the domain of a constitutional petition fit to be determined by the Constitutional and Human Rights Court for the actions of the Respondents have infringed upon and continue to infringe on the provisions of the Constitution and this Application and Petition call for the protection of the same under Article 22(1) of the Constitution.

26. That, this case has inherent merit, human and employment rights elements, the public interest element, is intent of Constitutional and Governance Values, is of proportionate magnitude and therefore meets the threshold set by the Supreme Court of Kenya in Gatirau Peter Munya vs Dickson Mwenda Githinji & 2 Others SCK [2013] eKLR on the grant of Conservatory Orders.

The 1st & 4th Respondents case 27. The Petition is opposed by the1st and 4th, Respondents arguing that the petition is premature for not exhausting all other available remedies, that the Petition is fatally incompetent thereby rendering the entire motion incompetent.

28. That, the 1st and 4th Respondent swore a Replying Affidavit on the 26th of April, 2023 and filed the same in Court on the 28th April 2023, and that, the following issues present themselves for determination by this Court:a)Whether this application has merit?b)Whether costs should issue?

29. The 1st and 4th Respondent submit that, pursuant to the provision of the first schedule of the County Assembly Services Act, the 4th Respondent's Secretary declared a vacancy in the position of board members and invited applications from persons who met the qualifications and were desirous of being appointed to fill those positions. The Secretary to the 4th Respondent declared the vacancies in the office of the County Assembly Service Board vide Gazette Notice No. 11874 dated 27th September, 2022.

30. The 1st and 4th Respondent submit that, in addition to the Gazette Notice, the vacancy was also declared in the Daily Nation Newspaper on the 1st October, 2022 wherein interested applicants were notified of the vacant position in the office of the member of Nakuru County Assembly Service Board.

31. That, following the advertisement, twenty-seven (27) applications were received and thereafter, shortlisting was conducted and twenty-four (24) persons who had met the required qualifications were shortlisted for the position.

32. That, the 4th Respondent resolved to seek consultancy services from the Kenya School of Government which constituted an interview panel and interviews were thereafter slated for the 10th, 11th and 12th November, 2022. The interviews were conducted as scheduled and thereafter the panel made the following observation:“The consultants noted that most of the candidates had graduated in the year 2020 and 2021 while some of them had degrees from Costarica, Sun Juan University and the Eldoret Bible School..... The consultants therefore recommend to the board that they write to the ministry and further investigate the legitimacy of the degrees”.

33. The 1st and 4th Respondent submit that, following the recommendation by the panel, the County Assembly Service Board resolved to re-advertise the vacancy. The re-advertisement of the vacancies was vide the two daily newspapers of nationwide circulation that is; the Daily Nation Newspaper and The Standard Newspaper on the 7th of February, 2023.

34. Following the re-advertisement of the vacancies, thirty (30) applications were received out of which seventeen (17) were shortlisted.

35. That, the 4th Respondent sought consultancy from the Parliamentary Service Commission and a panel constituting of four persons was constituted. The interviews of the seventeen (17) shortlisted candidates were conducted on the 2nd and 3rd March, 2022 out of which the panel issued a merit list of six (6) men and four (4) women. Thereafter, a report on the interviews for the position of County Assembly Service Board Members Nakuru County Assembly was issued in the month of February, 2023.

36. The 1st and 4th Respondent submit that, a special sitting of the County Assembly of Nakuru was announced vide Gazette Notice No. 3599 after which a meeting was held on the 21st of March, 2023 whose agenda was to consider the Report of the 4th Respondent.

37. The 4th Respondent forwarded two names (male and female) as required to the County Assembly for vetting and approval. Subsequently, the County Assembly Service Board forwarded the names of Ms. Glaris Chepkurui and Mr. Allan Nyamache to the County Assembly for approval on the 14th of March, 2023. The County Assembly unanimously approved the nomination of Ms. Glaris Chepkurui as a member of the board and her name was gazetted vide Gazette Notice No. 3600.

38. The 1st and 4th Respondents submit that, the process leading to the appointment of Ms. Glaris Chepkurui as a member of the County Assembly Public Service Board was carried out in a free, fair and transparent nature in line with Article 10 of the Constitution of Kenya, 2010 as well as all other core values governing the procedure for recruitment. The 1st and 4th Respondents considered the requirements for the appointment of a person to the position of the member of the County Assembly Service Board as laid down in Section 9(1) of the County Assembly Services Act No. 24 of 2017.

39. That the victorious candidate, Ms. Glaris Chepkurui had attained all the requirements for the position that is:a.She is a Kenyan citizenb.She is a resident of Nakuru County with knowledge and experience in public affairs but not a member of the county assembly.c.Holds a degree from a university recognized in Kenya.d.Has at least ten (10) year experience in public affairs.e.Met the requirements of Chapter 6 of the Constitution of Kenya 2010.

40. The 1st and 4th Respondents submit that, Ms. Glaris Chepkurui had attained the ten (10) years' experience in public affairs threshold having attained the experience pre and post-graduation in the year 2015.

41. That prior to her graduation, Ms. Glaris Chepkurui had acquired vast knowledge and experience in the field of public affairs and she was able to demonstrate the same during the interview and the inter viewing panel was satisfied that she had reached the required threshold on experience.

42. The 1st and 4th Respondents submit that, the drafters of the County Government Act No. 17 of 2012 and the County Assembly Services Act No. 24 of 2017 did not rule out the fact that experience acquired before acquiring a degree does not count when computing the general years of experience.

43. As such, the 1st and 4th Respondents unanimously chose the candidate they felt would bring the best service to the County Assembly Service Board and whose qualifications were in line with those laid down in Section 12 (3) of the County Government Act No. 17 of 2012 and Section 9 (1) of the County Assembly Services Act

44. That, the name of Mr. Allan Nyamache was rejected by the County Assembly and as such, the County Assembly Service Board was required to forward another name to the County Assembly for approval.

45. The 1st and 4th Respondents submit that, the present petition and application have been filed prematurely considering the fact that the second name for a male candidate is yet to be forwarded to the County Assembly for vetting and approval. The County Assembly is an independent body from the County Assembly Service Board and it exercises its functions and powers independently and vetted the candidates presented before it and arrived at the most suitable candidate.

46. The 1st and 4th Respondents rely on the provision of section 7(10) of the Public Appointments (County Assemblies Approvals) Act No. 5 of 2017 provides an opportunity to any member of the public prior to the vetting process to write to the clerk with evidence contesting the suitability of a candidate to hold the office which candidate has been nominated to. The Petitioner/Applicant herein did not endeavor to undertake this integral activity reserved for the members of the public to express their dissatisfaction and/or contempt in the process of recruitment of the nominees.

47. The 1st and 4th Respondents submit that, where there is a clear procedure for the redress of any particular grievance by the Constitution or an Act of Parliament, that procedure should be strictly followed. The doctrine of exhaustion bears its roots from this constitutional Court and the said doctrine ensures postponement of judicial consideration of disputes to ensure that first of all the purportedly aggrieved is diligent in protection of his own rights within the mechanisms available for resolution outside Courts.

48. That the importance of the doctrine of exhaustion was discussed by the Court in the case of Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others [2015] eKLR cited with authority in the case of James Kugocha vs. Chief County Officer Department of Infrastructure [2018] eKLR where the Court stated,“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be a last resort and not the first port of call the moment a storm brews...The exhaustion doctrine is a sound one and serves the purpose. of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent ir. the protection of his own interest within the, mechanisms in place for resolution outside the Courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute."

49. Reliance has been placed in Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court of Appeal held that:“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions”.

50. The 1st and 4th Respondents rely on the case of Republic v National Environment Management Authority EX parte Sound Equipment Ltd, [2011] eKLR, where the Court of Appeal observed: -“Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the Court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it...”

51. That, in the present case, there is a clear process for redress outlined in Section 7(10) of the Public Appointments (County Assemblies Approvals) Act No. 5 of 2017 which gives an opportunity to any member of the public prior to the vetting process to write to the clerk with evidence contesting the suitability of a candidate to hold the office which candidate has been nominated to.

52. That, the Petitioner/Applicant failed to exhaust the alternative remedy process provided for by the Public Appointments (County Assemblies Approvals) Act No. 5 of 2017 and thus it is evident that the present proceedings before this honorable Court are a direct abuse of Court process and for those reasons this honorable Court ought to down its tools.

53. The 1st and 4th Respondents rely on the case of The Owners Of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited [1989] KLR 1 wherein he stated,“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."

54. That, it is therefore evident that the present application is a grave abuse Court and this honorable Court ought to strike out the petition and application under Order 2 Rule 15 of the Civil Procedure 2010 on the grounds that it is an abuse of Court process:“At any stage of the proceedings, the Court may order to be struck out or amended any pleading on the ground that- it is otherwise an abuse of the process of the Court"

55. The 1st and 4th Respondents submit that, the concept of abuse of Court process was discussed by Justice Mativo in Satya Bhama Gandhi v Director of Public Prosecution & 3 others [2018]eKLR where he stated that:“The concept of abuse of Court & judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents. The situations that may give rise to an abuse of Court process are indeed in exhaustive, it involves situations where the process of Court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of Court process in addition to the above arises in the following situations: -a)Instituting a multiplicity of actions on the same subject matter, against the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.b)Instituting different actions between the same parties simultaneously in different Court even though on different grounds.

56. The 1st and 4th Respondents submit in conclusion, that this Court lacks the requisite jurisdiction to hear and determine this suit for reasons that the Applicant did not exhaust all local remedies prior to approaching this honorable Court. As such the orders sought in the application are untenable and incapable of being granted by this Honorable Court. It would only be right and in the interest of fair administration of justice that this Court makes an order directing the Petitioner/Applicant to exhaust the available remedies before approaching this honorable Court.

57. The 1st and 4th Respondents submit they are entitled to costs and place reliance and refer to Judicial Hints on Civil Procedure, 2d Edition, (Nairobi) Law Africa 2011 at page 101 of the book, where Retired Justice Kuloba authoritatively states as follows: -“The law of costs as it is understood by Courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the Court to deprive him of his costs- the Court has no discretion and cannot take away the Plaintiffs right to costs If the Defendant, however innocently, has infringed a legal right of the Plaintif is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course."

Determination 58. From the pleadings, dispositions and submissions, I have framed the following issues for my determination:

1. Whether the Court has jurisdiction to entertain the petition? 59. I have carefully considered the pleadings, the responses, the written submissions and the various decisions referred to by the1st and 4th Respondent. One of the preliminary issues raised by the Respondent has a jurisdictional inclination. It is contended that the Petition fails the test of raising constitutional issues and as such, this Court ought to down its tool.

60. For the reason that the issue impugned the jurisdiction of this Court, this Court must determine it at the earliest. (See the Supreme Court of Kenya in Petition No. 7 of 2013, Mary Wambui Munene v Peter Gichuki Kingara and Six Others [2014] eKLR).

61. Article 2 of the Constitution which provides that:(1)This Constitution is the Supreme law of the Republic and binds all persons and all state organs at both levels of government.(2)No person may claim or exercise state authority except as authorised under this Constitution.

62. Article 165(6) of the Constitution provides that: The High Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior Court.

63. This matter focuses on the parameters of constitutional Petitions. Articles 22 and 258 of the Constitution remain the anchor provisions relating to the locus standi in instituting Petitions.“The Constitution, the law as well as Courts have expressed themselves on the manner in which Petitions ought to be presented to Court. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’) provide for the contents of Petitions. Rule 10 thereof provides seven key contents of a Petition as follows: -Form of petition.10. (1) An application under rule 4 shall be made by way of a petition as set out in Form A in the Schedule with such alterations as may be necessary.(2)The petition shall disclose the following—(a)the petitioner’s name and address;(b)the facts relied upon;(c)the constitutional provision violated;(d)the nature of injury caused or likely to be caused to the petitioner or the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;(e)details regarding any civil or criminal case, involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;(f)the petition shall be signed by the petitioner or the advocate of the petitioner; and(g)the relief sought by the petitioner”.

64. Rule 10(3) and (4) of the Mutunga Rules also have a bearing on the form of Petitions. They provide as follows:SUBPARA -(3)Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.(4)An oral application entertained under sub rule (3) shall be reduced into writing by the Court.

65. Rules 9 and 10 are on the place of filing and the Notice of institution of the Petition respectively.

66. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR had the following on Constitutional Petitions:-Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, [1979] KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

67. The issue of prematurity of or mootness of petition was dealt with in the case of Wanjiru Gikonyo and Others v National Assembly of Kenya and 4 Others Petition No. 453 of 2015 [2016] eKLR Onguto J held as follows:27. Effectively, the justiciability dogma prohibits the Court from entertaining hypothetical or academic interest cases. The Court is not expected to engage in abstract arguments. The Court is prevented from determining an issue when it is too early or simply out of apprehension, hence the principle of ripeness. An issue before the Court must be ripe, through a factual matrix, for determination.

28. Conversely, the Court is also prevented from determining an issue when it is too late. When an issue no longer presents an existing or live controversy, then it is said to be moot and not worthy of taking the much-sought judicial time.

35. It is however to be noted that the Court retains the discretion to determine whether on the circumstances of any matter before it still ought to be determined.

68. The Impugned action by the 1st Respondent under contest was an administrative act for which the petitioners could have addressed administratively, no demonstration in this regard to exhaust the provisions of Section 4 and 7 of the Act has been presented on the converse it is clearly demonstrable that the Petitioner only moved Court after being equipped with documents by the 1st Respondent, her malafide is apparent as she never complained at any stage.

69. The Petitioners have equally not presented any cogent evidence of illegality in action by the 1st Respondent not withstanding alleging so.

70. The conduct of constitutional Petitions is also guided by various laws. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to constitutional Petitions and affidavits in Section 2 thereof. The provision provides as follows: -“1. This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.

2. Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.”

71. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof as follows:“(1)Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

72. 109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

73. A Constitutional and Human Rights Court is supposed to exclusively deal with constitutional issues. Courts have defined what constitutional issues are. In Fredricks & Other v MEC for Education and Training, Eastern Cape & Others [2002] 23 ILJ 81 (CC), the Constitutional Court of South Africa rightly so, delimited what a constitutional issue entails and the jurisdiction of a Constitutional Court as follows:-The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…

74. That a constitutional petition should set out with a degree of precision, the Petitioners complaint, the provisions infringed and the manner in which they are alleged to be infringed in the body of the Petition, the Petitioner has not shown how their individual or collective rights have been infringed by the 1st Respondent thus has failed in what is the most basic ground rudimentary of requirements as there are no constitutional issue raised as was stated in the case of Mape Building & General Engineering v Attorney General & 3 Others 20161 EKLR where the Court cited the case of Anarita Karimi Njeru v The Republic [1976-1980] KLR 1272 where it was held thot:“It is now well settled that parties coming to Court and alleging violation of Constitutional rights must with reasonable precision spell out the relevant Articles of the Constitution and further particularize with reasonable precision the alleged violations as well as how the violations were committed".

75. In the case of Anarita Karimi And Mumo Matemu v Trusted Society Of Human Rights Alliance And 5 Others [2013] eKLR it was held that:"any Petitioner who seeks redress under the constitution must state his claim with precision by reference to the provisions of the constitution allegedly violated and explain how the provisions were violated".

76. The case of Grays Jepkemoi Kiplagat v Zakayo Chepkoga Cheruiyot [2021] EKLR further emphasized on the threshold for a petition where it was held that:“it is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complaints".

77. The Petitioner in this instance moved Court on behalf of every resident of Nakuru county and in view of protecting the Constitution as well as the legitimate expectation of the residents of Nakuru County and the entire Country at large.

78. The Petitioner was embarking on the crusade referred to in paragraph 77 above, alleging that the Respondents and consultants had contravenedthe strict qualification requirements provided for under Sections 12 of the County Governments Act, 2012 as read together with Section 8 and 9 of the County Assembly Services Act No.24 of 2017, by including individuals that they had identified as having not met the minimum qualification requirements.

79. The Petitioner accused the Respondents of having infringed on the express requirements of the law and outrightly violated the Constitution and gone against the legitimate expectations of the Petitioner and the general public sadly no evidence was laid in this regard.

80. The Court has scrutinized the entire petition and sadly note that whereas the Petitioner has used sweeping statements, the petition as framed lacks any specific contravention of the constitution. The fact that the 1st Respondent made Article 35 disclosure to the Petitioner is indicative of the civil engagement the constitution envisaged.

81. The Sad reality was that the Court was being enticed into a merit review on a locus standi that was dubious, suspicious, the orders sought tethered on judicial overreach and separation of power and equally sought to invite the Court into the micro-real of recruitment by the Respondents. What constitutes experience should be looked at generously to include relevant experience gathered prior to attainment of academic qualification. It would appear to this Court that this was the only argument advanced but which I find not to be a constitutional issuer. The relevant Respondent could easily have clarified this issue.

82. To what extent then may a Court intervene in the functions of other organs? The Court in Frank Mulisa Makola v. Felix G. Mbiuki & 4 others (2013) adverted to this question, and stated at paragraph 39 that, as to what lengths a Court can actually go in doing so, is a second level of inquiry based on the circumstances of each case.

83. Courts should, in the absence of demonstrable action that violate the constitution, decline the invitation to interfere in the functions of other arms of government. The Supreme Court of Kenya asserted this position in The Speaker of the Senate and Another and the Attorney General and Others (2013: para. 62), where it stated, it would be averse to questioning parliamentary procedures that are formulated by the two houses of Parliament to regulate their internal workings as long as the same do not breach the Constitution.

84. In Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others (2013: para. 77), the Court of Appeal stated with reference to judicial review of legislative decisions that a Court reviewing the procedure of a legislature is not a super-legislature, sitting on appeal on the wisdom, correctness or desirability of the opinion of the impugned decision-making organ, “[The Court] has neither the mandate nor the institutional equipment for that purpose in our constitutional design. Moreover, the process cannot be wrong simply because another institution, for example the Courts, would have conducted it differently.”

85. The test therefore requires Courts to focus on examination of relevant available material and evidence vis-à-vis the objective criteria set out in Constitution and statute, as opposed to the likely subjectivity that may arise from the standard of the reasonable and rational person (Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, 2013: para 79).“Thus, where the Constitution of Kenya prescribes in Article 73(2) that the guiding principles of leadership and integrity include, selection on the basis of personal integrity, competence and suitability, appointment to public office that meets procedural requirements can only be impugned on the basis of clear objective evidence demonstrating that an appointee fails to meet the criteria.”

86. Consequently, the following final orders do hereby issue:a. This Court finds the notice of motion to be lacking in merit and accordingly dismiss the same.b. The Petitioner shall fix the Petition for hearing.c. There shall be no Orders as to costs.

Orders accordingly.

DATED, SIGNED AND DELIVERED IN NAKURUOn this 21st day of November, 2023MOHOCHI S.MJUDGE