Mwawaza v Mwaidza & another [2022] KEHC 10031 (KLR) | Definition Of Public Officer | Esheria

Mwawaza v Mwaidza & another [2022] KEHC 10031 (KLR)

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Mwawaza v Mwaidza & another (Petition E001 of 2022) [2022] KEHC 10031 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10031 (KLR)

Republic of Kenya

In the High Court at Voi

Petition E001 of 2022

JN Onyiego, J

July 15, 2022

Between

Macmillan Nyange Mwawaza

Appellant

and

Christine Munga Mwaidza The Returning Officer, Voi Constituency

1st Respondent

Returning Officer, Voi Constituency

2nd Respondent

(Appealing from the decision of Hon.Wambua Kilonzo (Panel Chairperson), Hon. Irene Masit (Ms) (Panel Member) and Hon. Justus Nyang’aya (Panel Member) sitting at the Dispute Resolution Committee At Nairobi in Complaint No.44 of 2022, delivered on 16th day of June 2022)

Judgment

1. MacMillan Nyange Mwawasa (hereafter the appellant), is an independent aspiring candidate for the seat of Member of Parliament Voi Constituency. Like all other candidates aspiring to contest for that position, he was required to present his nomination papers to the independent and Electoral Boundaries Commission at a designated place and specified time for purposes of clearance to contest for that position during the national general election scheduled to take place on 9th August 2022.

2. On 31ST May 2022, in obedience to that requirement, he presented himself at Mawanga primary school the designated station for that purpose and presented his nomination papers to the officially appointed Returning officer one Christine Munga Mwaidza (the respondent) for clearance. Upon perusal of the said documents, the returning officer invalidated his nomination by endorsing on the face of the application that being a public officer still working with Coast Institute of Technology he had not resigned six months prior to election day in contravention of Section 43(5) of the Elections Act No. 24 of 2011

3. Aggrieved by the said rejection, he moved the Dispute Resolution Committee of the Independent Electoral and Boundaries Commission vide a complaint dated 4th June, 2022 and filed on 6th June, 2022 seeking to have his nomination validated as he was not a public officer as contemplated by Article 260 of the Constitution of Kenya 2010.

4. The said complaint was accompanied by a Notice of Motion application dated 4th June,2022 seeking the following orders;(a)That the complainant be and is hereby declared a non-public officer.(b)That the complainant’s commission nomination be and is hereby validated.(c)That the orders made be served upon ethics and anti-corruption commission [EACC] as per their report on compliance with integrity requirements by aspirants seeking elective positions in the general election of 9th August,2022, verifying the complainant as a non-public officer.(d)That the honourable dispute resolution committee be pleased to make any other order or further order(s) as it may deem appropriate in the circumstances.

5. Upon hearing both parties, the committee rendered itself on 16th June,2022 thus holding as follows;“In the premise, the committee finds and holds that the complainant being a public officer had not resigned from public service employment as required under the provisions of Section 43(5) of the Elections Act 2011 prior to presentation of his nomination papers for registration.Thus, the committee upholds the decision of the Returning Officer Voi Constituency rejecting the complainant’s application to vie for the position of Member of National Assembly Voi Constituency, Taita Taveta County in the upcoming general election.”

6. Based on the above finding, the committee effectively dismissed the complaint with no order to costs. Dissatisfied with the orders of IEBC Dispute Resolution Committee, the appellant moved to this court under Certificate of Urgency filed together with a notice of motion application, record of appeal and petition of appeal all dated 24th June, 2022.

7. The notice of motion sought the following orders;(a)Spent(b)That this honourable court be pleased to issue orders upon the respondent compelling her to validate the nomination of the appellant/complainant herein to run for the member of parliament in Voi Constituency pending the hearing and determination of the petition of appeal herein.(c)That each party to bear own costs.

8. The appeal is based on the following grounds;a)The learned trial panellists erred in law and in fact in failing to interpret ‘public officer’ as provided in Article 260 of the constitution of Kenya.b)The learned trial panellists erred in law and in fact when they misdirected themselves completely disregarding the appellant’s/complainant’s case and did not address their minds as to tests of who qualifies to be a ‘public officer’ as per the stipulations in the 2010 Constitution of Kenya.c)The learned trial panellists erred in law and in fact when they failed to apply their minds to the extent of prejudice the appellant is exposed to, for he could be locked out in the race to run for the parliamentary seat in Voi Constituency to which he has political rights protected under the 2010 Constitution.

9. The appellant urged the court to; allow the petition and issue an order quashing the decision of the Dispute Resolution Committee; declaring the appellant a non –public officer;compelling the respondent to validate the appellant/complainant’s candidature in the nomination so that he be gazetted to run for the seat of member of parliament Voi constituency and; any other relief the court deems fit.

10. In response, the respondent filed grounds of opposition together with a notice of preliminary objection. The grounds of opposition were outlined as follows; the appellant had not attached a copy of the decision by IEBC Dispute Resolution Committee which formed the basis of the appeal; the appellant had not sought any order for the nullification or review of the decision of the IEBC Dispute Resolution Committee; the decision declaring the appellant ineligible to vie for the position of member of parliament, Voi Constituency had already been dealt with by the IEBC Dispute Resolution Committee and could not be re-litigated afresh as the appellant was attempting to do; this court being an appellate court of second instance was barred under the law from delving into the factual issues raised in the appeal herein; this honourable court was exempted from interfering with the decision of the IEBC Dispute Resolution Committee on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law; the appellant had failed to enjoin the Independent Electoral and Boundaries Commission (IEBC)under whose mandate and employment the respondent operates; the IEBC gazetted the names of the vetted and cleared independent candidates on 1st July ,2022; there was no order sought barring the IEBC from gazetting the names of independent candidates; the appeal has bee overtaken by events; the appellant was guilty of laches as the decision of IEBC was delivered on 16th June,2022 while the appeal was filed on 28th June,2022.

11. The respondent further argued that the appellant’s petition was bad in law for the following reasons; the court does not have jurisdiction to entertain the petition as framed; the petition is incompetent, fatally defective , misconceived and an abuse of the court process as it negates the principle and essence of res judicata; the petition of appeal seeks to invoke the jurisdiction of this honourable court by re-litigating afresh the decision of the respondent as to the appellant’s eligibility to vie for the post of the member of parliament ,Voi Constituency which was determined by the IEBC Dispute Resolution Committee.

12. In conclusion, the respondent urged the court to strike out the entire petition with costs. When the matter came up for hearing on 12th July 2022, the appellant opted to compromise the notice of motion in favour of hearing the appeal. Mr. Mutugi counsel for the respondent claimed that he had not been served with the petition of appeal hence sought more time to file a response to the said appeal. The court granted the application for adjournment and fixed the matter for hearing on 13th July 2022.

13. Subsequently, Christine Munga the respondent herein filed a replying affidavit sworn on 13th July, 2022. She averred that the appellant had sued her in her capacity as the returning officer, Voi Constituency yet the subject of the appeal herein was a decision made by the IEBC Dispute Resolution Committee before which she appeared in her capacity as the respondent. She further averred that the appellant had failed to enjoin the Independent Electoral and Boundaries Commission (IEBC) under whose mandate and employment she operates

14. That the IEBC Dispute Resolution Committee whose decision the appellant was seeking to overturn is a creature of the Independent Electoral and Boundaries Commission which is not a party to the appeal. She stated that she had no instructions to act on behalf of the committee nor the commission. That her decision of 31st May, 2022 was upheld by the committee hence not answerable nor liable to the committee’s decision. According to her, the correct party to the proceedings should have been IEBC Dispute Resolution Committee (Through IEBC). It was her position that the court cannot issue orders against persons or entities who are not parties to the matter.

15. The respondent further stated that the commission had already gazetted the names of the vetted and cleared independent candidates vide gazette notice of 1st July, 2022 hence the appeal is overtaken by events. She deposed that the appellant was guilty of laches as the decision of the committee was delivered on 16th June, 2022 yet the appeal was filed on 28th June, 2022 two days before gazettement of the independent candidates by the commission. She urged the court to find that the petition of appeal is incompetent, amounts to an abuse of the court process and therefore suitable for dismissal with costs.

16. After closure of pleadings, Mr. Mutugi opted to withdraw the respondent’s preliminary objection and grounds of opposition in favour of arguing the substantive appeal.

17. The appellant appearing in person basically reiterated his submissions tendered before the IEBC Dispute Resolution Committee thus expressing the position that as an employee employed by the board of governors as anon teaching staff he cannot be said to be a public officer as envisioned under Article 260 of the constitution and Section 43(5) of the Elections Act 2011.

18. He contended that according to Article 260 of the constitution, a public officer is defined as an employee who receives his remuneration from the exchequer or consolidated fund which is not the position in this case. It was his submission that his constitutional right to contest for a political seat has been trampled upon through misinterpretation of the law by the IEBC Dispute Resolution Committee hence a direct violation of his rights under Article 38 of the constitution.

19. It was his further submission that he could not file judicial review proceedings because he was concern with the decision itself and not the process undertaken by the IEBC Dispute Resolution Committee leading to that decision. Regarding the fact that IEBC has already gazetted candidates’ names, he contended that its chairman did promise that in case of any favourable court decision for disputed nominations, he could amend the gazettement by way of a corrigenda hence gazettement of names is not a bar to his realizing his rights.

20. On her part, the respondent through the firm of Muthee kihiko Soni Advocates represented by Mutugi advocate reiterated the averments contained in the affidavit in reply to the appeal. Counsel contended that the respondent is wrongly sued or cited in the current appeal as her decision was challenged before the IEBC Dispute Resolution Committee and a decision made hence her office had become functus official.

21. Learned counsel further contended that the appellant should have sued or enjoined the IEBC and its Dispute Resolution Committee as the bodies that made the impugned decision and against whom orders sought can be directed to for implementation. That court orders cannot issue in vain as they must be directed to the right party for execution. Counsel contended that orders cannot issue against a non-existent party. Lastly, Mr. Mutugi submitted that the appellant is guilty of laches having slept over his rights since 16th June 2022 when the impugned decision was made.

Determination 22. After considering the petition of appeal herein, record of appeal and parties’ oral submissions, the following issues are discernible for determination;1)Whether the IEBC Dispute Resolution Committee erred in finding that the appellant is a public officer who should have resigned six months to the election date prior to presentation of his nomination papers in compliance with Section 43(5) of the Elections Act.2)Whether the Returning Officer is properly sued as the respondent in this appeal3)Whether the reliefs sought can issue

23. The genesis of these proceedings is the rejection or invalidation of the appellant’s nomination papers on account of non- compliance with Section 43(5) of the Elections Act 2011 which provides-“A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election”

24. The crux of the matter herein is the definition of the word “public officer” and whether the appellant fits into that definition which if answered in the affirmative, would mean that his resignation six months prior to election date was necessary. From the wording of the above quoted section, for one to qualify to be classified as a public officer, he or she must be in occupation of a public office from which he or she would be expected to resign.

25. It is trite law that the requirement for public officers to resign as prescribed under Section 43(5) of the Elections Act is anchored under Article 260 of the Constitution which defines a public officer as-“Public officer” means— (a) any State officer; or (b) any person, other than a State Officer, who holds a public office;“Public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament;

26. Under the same Article, the word “public service” means-the collectivity of all individuals, other than state officers, performing a function within a state organ. The same provision goes further to define the word “state organ” as referring to; a commission, office, agency or other body organ established under this constitution. And, the word “state” is also defined under the same provision when used as a noun to mean; the collectivity of offices, organs and other entities comprising the government of the republic under the constitution.

27. Apart from the Constitution, there are other statutory provisions which complement the constitution by giving more and elaborate clarity on who a public officer is in the context of Kenyan legal architecture. Among such provisions is the Public Officer Ethics Act which defines a public officer as follows;“Public officer” means any officer, employee or member, including an unpaid, part-time or temporary officer, employee or member, of any of the following—(a)The Government or any department, service or undertaking of the Government;(b)the National Assembly or the Parliamentary Service;(c)a local authority;(d)any corporation, council, board, committee or other body which has power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law;(e)A co-operative society established under the Co-operative Societies Act (No. 12 of 1997): Provided that this Act shall apply to an officer of a co-operative society within the meaning of that Act;(f)a public university;(g)any other body prescribed by regulation for the purposes of this paragraph;

28. The other crucial Act which also addresses the subject of who a public officer is, is the Anti-corruption and economic crimes Act which defines a public officer to mean-an officer, employee or member of a public body, including one that is unpaid, part time or temporary.

29. For the appellant to have qualified as a candidate in the manner presented, he was supposed to meet some requirements among them those set out under Section 43(5) which I have already alluded to and Section 24 of the Elections Act 2011 which provides;(1)Unless disqualified under subsection (2), a person qualifies for nomination as a member of Parliament if the person—(a)is registered as a voter;(b)satisfies any educational, moral and ethical requirements prescribed by the Constitution and this Act; and(c)is nominated by a political party, or is an independent candidate who is supported––i)in the case of election to the National Assembly, by at least one thousand registered voters in the constituency; or(ii)in the case of election to the Senate, by at least two thousand registered voters in the county.(2)A person is disqualified from being elected a member of Parliament if the person—(a)is a State officer or other public officer, other than a member of Parliament;(b)has, at any time within the five years immediately preceding the date of election, held office as a member of the Commission;(c)has not been a citizen of Kenya for at least the ten years immediately preceding the date of election;(d)is a member of a county assembly;(e)is of unsound mind;(f)is an undischarged bankrupt;(g)is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election; or(h)is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter Six of the Constitution.(3)A person is not disqualified under subsection (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.

30. What mischief is the law barring a public officer not to engage in active politics while in office intended to achieve? This position is clearly laid out under Section 23 (2) of the leadership and integrity Act which provides that;“an appointed state officer or public officer shall not engage in any political activity that may compromise or be seen to compromise the political neutrality of the office subject to any laws relating to elections’’“23(3) Without prejudice to the generality of sub-section (2) a public officer shall not –a)Engage in the activities of any political candidate or act as an agent of a political party or a candidate in an electionb)Publicly indicate support for or opposition against any political party or candidate participating in an election’’’.

31. From the above definition, the underpinning consideration is to preserve neutrality and impartiality in discharging public duty without aligning or being perceived to align to any particular political affiliation or group. In essence, it is intended to assure the public that public service is available to all regardless of ones’ political affiliation. See Charles Omanga & another v Independent Electoral & Boundaries Commission & another(2012) eKLR in which the court held as follows;“I also wish to state that the impartiality of public servants is a cardinal value enshrined in Article 232(1) (a) of the constitution which provides that the public servant and service must be “responsive, prompt, efficient, impartial and equitable” in the provision of services. How can a public servant espouse those principles if he is allowed to remain in office until the election date”The court went further to observe as follows;“In the Kenyan arena now and for a long time to come, whether one runs for elective office as an independent candidate or a nominee of a political party, election campaigns are a must. This includes movement around the elective area to popularize oneself with the electorate. It cannot be the intent of law that such a candidate should also be pursuing his public service duties and obligations during the campaign period”

32. Similar position was held in the case ofPublic Service Commission &4 others v Cheruiyot &20 others(Civil Appeal 119&139 of 2017(consolidated)(2022)KEACA15(KLR)(8TH february2022)(Judgment) where the court of Appeal held that;“the importance of political neutrality and impartiality of public officers during the term of office of employment cannot be overemphasized. We therefore do fully agree with the finding of Lenaola J in the Charles Omanga case petition on the necessity for public officers desirous of elective posts to resign in good time. The provisions for sections 43(5) and (6) also seek to promote, inter alia, the principle of good governance and the value of the integrity contemplated under Article 10 (2)(c) of the constitution”.

33. Ultimately, the intention of the drafters of the constitution in crafting Article 260 and by extension parliament in enacting the relevant provisions barring public officers from contesting for a political seat while in office was to enable a public officer choose between serving humanity as a public servant or be a politician. In my view, one is supposed to choose on the best master to serve and not both.

34. In the instant case, the appellant was barred by the returning officer from submitting his nomination papers as he had not resigned from his employment. This position was upheld by the IEBC Dispute Resolution Committee. He does not deny that he is still an employee of Coast Institute of Technology where he is working as campus administrator on permanent terms and that prior to presentation of his nomination papers he had not resigned. His argument is, as an employee of the college employed and being paid by the board of governors, he does not draw his salary or benefits from the consolidated fund or directly from money provided by parliament hence his position does not fall under the definition of who a public officer is under Article 260 of the constitution.

35. The question which falls for an answer is whether the applicant is occupying a public office and consequently discharging public duties. He does not deny the fact that he is occupying a public office and that his mandate is that of a public servant. It is not in dispute that Coast Institute of Technology is a public institution which falls under the ministry of education pursuant to the enactment of the Technical and vocational education and Training Act no. 29 of 2013 which is a state organ contemplated under Article 260 and Section 2 of the Public officer ethics Act.

36. A state organ as defined under Article 260 includes any government office. The office occupied by the appellant is a public office whose occupant must be a public servant or officer the source of his salary notwithstanding. However, it is worth noting that under Section 28 of the Technical and Vocational education and Training Act, the Cabinet Secretary ministry of education has powers to establish boards of governors for technical and vocational colleges.

37. Section 29 of the said Act goes further to stipulate functions of the said board of governors to include among others; receiving on behalf of the institution, fees, grants, subscription, donations , bequests or other monies and to make disbursements to the institution or other bodies or persons; recruiting and appointing trainers; determining suitable terms and conditions of service for support staff, trainers, instructors, and remunerating the staff of the institution in consultation with the board of Authority established under the Act. Obviously, the institute is a beneficiary of parliamentary budgetary allocation being a government department.

38. In view of this provision, the Board of governors is deemed to execute its mandate as an agent of the ministry of education and fees collected from students as a levy is public fund authorized for collection by the mother ministry which is a government department and by extension a state organ.

39. The appellant is clinging on the source of his income not coming from the consolidated fund or allocation made by parliament. Under Section 2 of the public officer ethics Act, a public officer refers to any officer, employee, or member, including an unpaid, part time or temporary officer, employee or member of any of the institutions name thereof. Among such institutions is government or any department, service or undertaking of the government. In my view, Coast institute of technology for all purposes and intent is a government department undertaking government business or activities. It therefore follows that anybody working therein whether on permanent terms or temporary is deemed to be a public servant or public officer. It does not matter whether the source of the salary is from students’ school fees as alluded to by the appellant or the consolidated fund.

40. In the case of Kenya union of domestic, Hotels, Education and allied workers (kudhehia workers) v Salaries and Remuneration Commission(2014) eKLR the court had this to say regarding who a public officer;“it cannot be denied therefore that in the above context, Moi teaching and referral hospital as well as Kenyatta National hospital are state corporations established under Section 3 of the state corporations Act. Public universities such as Moi University, University of Nairobi Egerton University etc are established by Acts of parliament as public universities. Although these institutions do not receive monies from the consolidated fund, they are empowered by parliament through legislation to raise income through levies and other commercial ventures. Further, state corporations receive funds from parliament through their respective ministries and fit the description in Article 260 regarding funds from parliament.Further ‘public fund’ has the meaning assigned to it by the Exchequer and Audit act (Cap 412 law of Kenya). Public money is Said therefore to include; revenue, any trust or other moneys held, whether temporarily or otherwise by an officer in his official capacity, either alone or jointly with any other person, whether an officer or not. Given that definition of public funds and given that the petitioner’s members work for institutions, parastatals or corporations that provide a public function, then to my mind they are properly within the public service category and therefore state corporations and their employees fall within the meaning of the public office and public officers and I so find”

41. The fact that Article 260 of the constitution defines a public officer as one who draws his salary or benefits from the consolidated fund or funds allocated by parliament does not imply that a court should give that provision a narrow and restrictive interpretation to the exclusion of statutory provisions which complements and breaths clarity on who a public officer really is. See Kigula & others v Attorney General(2005)1E.A. 132 at page 133 others where the Uganda court of appeal sitting as a constitutional court held that the principles of constitutional interpretation include inter alia, that the entire constitution be read as an integrated whole and no one particular provision destroying the other but each sustaining the other and further that all provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument. The court expressed itself that this is the principle of harmonization. Similar position was held in the case of Kenya human Rights Commission & another v Attorney General & 6 others (2019) eKLR.

42. Under Article 259 of the constitution, the court is enjoined to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the bill of rights and in a manner that contributes to good governance. The court is under obligation to critically analyse and examine the relevant provisions of the constitution and or legislation to discern the objective or purpose for such legislation or drafting of the constitution.

43. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Supreme Court Petition No. 26 of 2014 (2014) the Supreme Court emphasized that a purposive interpretation should be given to statutes so as to reveal the intention of statute. The court went further to state that;“In pepper v Hart (1992)3WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the court is not to be held captive to such phraseology. Where the court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation”.

44. From the above quoted provisions and case law, it is clear that the appellant is occupying a public office and receiving salary on permanent terms out of money collected by the B.O.G an entity acting as an agent of the ministry of education which is a state organ as defined under Article 260 of the constitution and Section 2 of the Public Officer and Ethics Act. The applicant is reading the constitution selectively and narrowly thus ignoring some parts of Article 260 and the application of other statutory provisions which operationalizes Article 260 in detail.

45. It would be absurd to take the approach taken by the appellant in interpreting the constitution restrictively and narrowly in a manner that suits his interest. It could not have been the intention of parliament that certain categories of persons working in public departments or institutions whether on part time or permanent terms do engage in political activities when in employment as public officers while others are barred. Section 43(5) cannot be applied selectively. The applicant cannot be allowed to run away from his core business of serving Kenyan citizens in his office to go campaign a bit or attend to his political activities and then go back when convenient. He should choose on the preferred master to serve but not both.

46. In a nut shell, it is my finding that the appellant is occupying a public office where he is discharging public duty hence a public officer the source of his salary notwithstanding. In view of that holding, I am inclined to uphold the finding of the IEBC Dispute Resolution Committee to the extent that the appellant did not comply with Section 43(5) of the Elections Act 2011 for failure to tender his resignation six months prior to election date before presentation of his nomination papers to Voi Returning officer for the position of member of parliament.

47. Regarding whether the returning officer was the correct party to be sued as the respondent, one would have to make reference to Sections 74 of the elections Act and Article 88 of the Constitution. Section 74 of the Elections Act does donate powers to the IEBC to resolve electoral disputes arising from nominations. Article 88 (4) (e) also extends similar mandate to the IEBC.

48. There is no dispute that the appellant is a victim of disqualification at the nomination stage by the returning officer whose decision was upheld by the IEBC Dispute Resolution Committee. According to the applicant, the proper party to have been enjoined is the IEBC and the Dispute Resolution Committee and not the returning officer. From the pleadings, this court has been moved through a constitutional petition instead of filing judicial review proceedings. This court cannot sit as a constitutional court as that will mean exercising original jurisdiction contrary to the prayers sought. From his submissions, the appellant seems to be aware that he had the option of seeking judicial review orders but decided not to. It is trite law that this court has unlimited jurisdiction under Article 165(3) and enjoys supervisory jurisdiction over subordinate courts and over any person, body or authority exercising judicial or quasi-judicial function, but not over superior court under Art.165 (6). One such body is IEBC whose decisions are subject to supervision by way of judicial review.

49. In my view, the appellant should have moved the court through judicial review proceedings seeking certiorari and mandamus orders against the IEBC Dispute Resolution Committee whose orders he is seeking to set aside or quash. By leaving the relevant party out of these proceedings is in my view irregular as orders cannot issue in vain against anon-existent party.

50. I am cognizant of the fact that the appellant is a lay person but, the irregularity committed is so grave that it cannot be cured under Article 159 of the constitution. Rules of procedure are not made in vain but to serve a purpose. See Speaker of the National Assembly vs Njenga Karume(2008)1KLR425 in which the court stated that where there are clear rules of procedure for redress of any particular grievance prescribed by the constitution or Act of parliament such procedure must be followed.

51. In view of the above holding, I am in agreement with Mr. Mutugi that the purported appeal herein is anon starter. To that extent, the reliefs sought cannot apply. Accordingly, the appeal herein is dismissed with costs to the respondent.

DATED, SIGNED DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF JULY 2022. ...........................J.N.ONYIEGOJUDGE