Muktar & another v National Project Coordinator, Kenya Development Response to Displacement Impacts Project & 2 others; Mohamood & 2 others (Interested Parties) [2023] KEHC 25988 (KLR)

Muktar & another v National Project Coordinator, Kenya Development Response to Displacement Impacts Project & 2 others; Mohamood & 2 others (Interested Parties) (Constitutional Petition E014 of 2023) [2023] KEHC 25988 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25988 (KLR)

Republic of Kenya

In the High Court at Garissa

Constitutional Petition E014 of 2023

JN Onyiego, J

November 17, 2023

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS AS ENSHRINED UNDER ARTICLES 27[1] AND [2], AND 35[3] OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF CONTRAVENTION OF ARTICLES 10, 27[1] AND [2], 35[3], 47, 73[1] AND [2], 227[1] AND [2] OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF ACTUAL, CONTINUING AND IMMINENT VIOLATION OF THE LEADERSHIP AND INTEGRITY ACT, 2012. AND IN THE MATTER OF IMPROPER AND ILLEGAL CONSTITUTION OF THE PROJECT MANAGEMENT COMMITTEE WITH REGARDS TO KDRDIP- CONSTRUCTION AND EQUIPPING OF NO.1 BOREHOLE AT BOROANA SETTLEMENT.

Between

Abdullahi Muktar

1st Petitioner

Abdullahi Abdiwahab

2nd Petitioner

and

National Project Coordinator, Kenya Development Response to Displacement Impacts Project

1st Respondent

County Project Coordinator, Kenya Development Response to Displacement Impacts Project

2nd Respondent

The Hon. Attorney General

3rd Respondent

and

Abdikadir Duqow Mohamood

Interested Party

Yussuf Hassan Mohamoud

Interested Party

Siyada Noor Buress

Interested Party

Ruling

1. Before this court is a notice of motion dated 27. 09. 2023 filed by the firm of Abdiwakil & Associates Advocates on 27. 09. 2023 wherein the applicants seek orders that:i.Spent.ii.Pending the inter parties hearing of this application this Honourable Court be pleased to issue a conservatory order in the nature of an injunction restraining and staying the 1st and 2nd respondents, their agent, officers or any persons acting under their circumstances from releasing monies to the accounts of the Community Project Management Committee and continuing to do any action or omission or dealing with the said committee in any way, form, shape or manner.iii.Pending the hearing and determination of this application, this Honourable court be pleased do issue a conservatory order in the nature of an injunction restraining and staying the 1st and 2nd respondents, their agents, officers or any persons acting under their instructions from releasing monies to the accounts of the Community Project Management Committee and continuing to do any action or omission or dealing with the said committee in any way, form, shape or manner.iv.Pending the hearing and determination of this petition, this Honourable Court be pleased to issue a conservatory order in the nature of an injunction restraining and staying the 1st and 2nd respondents, their agents, officers or any persons acting under their instructions from releasing monies to the accounts of the Community Project Management Committee and continuing to do any action or omission or dealing with the said committee in any way, form, shape or manner.v.Pending inter partes hearing of this application, this Honourable Court be pleased to issue conservatory order in the nature of an injunction, staying, stopping, freezing the 1st and 2nd respondents from proceeding with tendering process and do further order that no action be taken by the respondents to implement, effectuate or adhere to the said process.vi.Pending the hearing of this application, this Honourable Court be pleased to issue a conservatory order in the nature of an injunction, staying, stopping, freezing the 1st and 2nd respondents from proceeding with the tendering process and do further order that no action be taken by the respondents to implement, effectuate or adhere to the said process.vii.Pending the hearing of this petition, this Honourable Court be pleased to issue a conservatory order in the nature of an injunction, staying, stopping, freezing the 1st and 2nd respondents from proceeding with the tendering process and do further order that no action be taken by the respondents to implement, effectuate or adhere to the said process.viii.That this Honourable Court be pleased to issue a conservatory order in the nature of an injunction, restraining the 2nd and 3rd interested parties, their agents, officers or any persons acting under their instructions from interfering, altering or disbursing any monies received for the implementation of the construction and equipping of borehole and its storage at Boroano Village in Goreale pending the hearing and final determination of this petition.ix.Costs of this application be provided for.

2. The application is premised on the grounds on its face and further supported by the affidavit of Abdullahi Abdiwahab who deposed that the 1st and 2nd respondents have approved a project for the construction and equipement of a borehole along with its storage in Boroano Settlement in Goreale Ward. And that the said project is being implemented by the Kenya Development Response to Displacement Impacts Project (KDRDIP).

3. It was his case that there has been a problem in constituting the Community Project Management Committee, hereinafter CPMC as the process of selecting, electing and/or identifying the committee members did not follow the laid down constitutional procedures, laws and regulations. It was deponed that the whole process was hijacked by one family at the expense of the larger community of Boroana Settlement.

4. This court was therefore urged that in the interest of justice, the orders sought herein be granted as the residents of Goreale Ward stand to be greatly prejudiced if it is not afforded an opportunity to be heard.

5. The 1s, 2nd and 3rd respondents filed grounds of opposition dated 04. 10. 2023 thus urging that the allegations by the petitioners are unfounded as the same are far from the truth. That the petitioners did not take into consideration the doctrine of constitutional avoidance as provided for under Chapter 11 of the Kenya Development Response to Displacement Impact Projects (KDRDIP) Community Operation Manual. To buttress their case reliance was placed on the case of Speaker of National Assembly v Karume (1992) KLR where it was stated that:“Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of parliament, that procedure must be strictly followed…”

6. That the claim by the petitioners has been brought in bad faith as the same is ill conceived. This court was therefore urged to refer this matter before the committee for a resolution to be realized.

7. The court directed that the application be canvassed by way of written skeleton submissions and that parties file and exchange the same.

8. The petitioners orally stated that they placed reliance on their application and further submitted that the project herein is a world bank initiative aimed at availing drinking water to the community. That the same is based on a developed manual which in this case was not followed. He averred that there was lack of participation in coming up with the committee herein as the assistant chief awarded his cronies tenders in drilling the boreholes. He urged this court to allow the application and issue the orders prayed.

9. Mr. Were for the 1st, 2nd and 3rd respondents urged that they were opposed to the grant of the sought orders. It was further his case that they relied on their skeleton submissions as filed.

10. Further to the oral submissions by the 1st 2nd and 3rd respondents, they also relied on their skeleton submissions dated 05. 10. 2023, in which they coined three issues for determination as follows;i.Whether the 2nd respondent is guilty of nepotism?ii.Whether the petitioners exhausted the provided mechanisms under the Community Operational Manual?iii.Whether the prayers sought should be granted.

11. On the first issue, they submitted that the 1st and 2nd respondents herein have no mandate to formulate the list of groups to benefit in the livelihood program since the same is vested on the appointed local community facilitators and the residents. That the Kenya Development Response to Displacement Impact Projects (KDRDIP) has a way of operation spelt out in a manual implementing activities within the projects mandate. They argued that the petitioners had failed to prove with precision the exact constitutional violation or infringement being claimed. In that regard, reliance was placed in the case of Anarita Karimi v Republic (1976 -1980) KLR 1272 where it was held that constitutional petitions must be pleaded with a reasonable degree of precision.

12. It was further submitted that the identification cards annexed by the petitioners did not lay any basis nor establish any aspect of nepotism and that to the contrary, the said identification cards simply buttress that the said people come from the very village intended to benefit from the project.

13. On the second issue, it was submitted that the project is mainly based on the community operational manual. That it is not in doubt that the community operational manual sets out clear structure for implementation of the Kenya Development Response to Displacement Impact Projects (KDRDIP). Additionally, they stated that the petitioners did not take notice of the doctrine of constitutional avoidance to exhaust the available dispute resolution mechanism in addressing their discontentment.

14. Lastly, the respondents submitted that the petitioners’ allegation of lack of public participation has been refuted by a document that they provided and therefore, the question of nepotism or favouritism is merely an accusation that ought to be clearly proved by the petitioners themselves. That the suit herein is meant to derail the execution of the project that is intended for public good.

15. The 1st, 2nd and 3rd interested parties did not participate in the application herein. I have considered the application, grounds of opposition thereto, and the submissions by the parties. The sole issue which arise for determination is whether conservatory orders should issue in the obtaining circumstances.

16. The first principle that the applicant/petitioner ought to demonstrate is that the petitioner has an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders, he is likely to suffer prejudice. The second principle is that the Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. The third principle is whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether, to grant or deny a conservatory order. [See Nubian Rights Forum & 2 others v Attorney General & 6 others (supra)].

17. On the question of establishing a prima facie case with a likelihood of success and likelihood on the part of the applicants/petitioners to suffer prejudice unless the orders are granted, the applicants’ case is that there has been a problem in constituting the Community Project Management Committee, hereinafter CPMC as the process of selecting, electing and/or identifying the committee members did not follow the laid down constitutional procedures, laws and regulations.

18. When a court is called upon to determine whether a prima facie case has been established, it should not delve into a detailed analysis of the facts and law but focus on whether the applicant has put forward a case that is arguable and not frivolous. See Mrao Ltd –vs- First American Bank of Kenya and 2 others, (2003) KLR 125 which was cited with approval inMoses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others, (2014)eKLR, where the Court of Appeal defined a prima facie case as: -“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later”.

19. In my view, the questions raised in the petition cannot be said to be frivolous for the reason that in constituting the CPMC, the petitioners have alleged that the process of selecting, electing and/or identifying the committee members was carried out without following the laid down constitutional procedures, laws and regulations. It therefore follows that there is imminent infringement of the rights of the applicants/petitioners. Without saying more, I find that the Applicant has a prima facie case with a likelihood of success.

20. Further, the applicants’/petitioners’ case is that the whole process was hijacked by one family at the expense of the larger community of Boroana Settlement without their input and involvement in the selection, election and /or identification of members of CPMC. That there was lack of transparency of the whole process in terms of discrimination, inequality, favouritism and lack of integrity in selecting and /or electing the members of the committee. As a consequence, it is my finding that the applicant has proved that there is a chance they stand to suffer prejudice if the conservatory orders are not made.

21. As to whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights, I note that the petition revolves around inter alia; articles 10, 27(1) & (2), 35(3), 47and 73 (1) & (2) of the Constitution which is the supreme law of the land which binds all persons and State organs at both levels of government.

22. It follows that all persons whether individually or collectively are enjoined to respect, uphold and defend the constitution. Therefore, denial of the orders prayed would not therefore enhance the said constitutional values aforesaid.

23. As to whether the petition or its substratum will be rendered nugatory if the interim conservatory orders are not granted, I note that the petition is premised on the alleged violation of the petitioners’ rights under the constitution. Amongst the reliefs sought is a declaration that the rights and fundamental freedoms of the applicants/petitioners stand infringed; most specifically their rights under article 10, 27 and 73 (1) & (2) of the Constitution.

24. It is my considered view that the applicants/petitioners herein have satisfied the aforesaid principles in regard to the granting of interim or conservatory orders and as such, the application is hereby allowed with no order as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF NOVEMBER 2023J.N. ONYIEGOJUDGE