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Court of AppealPartially AllowedCivil Appeal No 218 of 2012· [2013] KECA 7 (KLR)

Minister for Internal Security and Provincial Administration v Centre for Rights Education & Awareness (CREAW) & 8 others (Civil Appeal 218 of 2012) [2013] KECA 7 (KLR)

Court of Appeal of Kenya
14 June 2013
Martha Karambu KoomeM. K. KoomeAMA. MakhandiaSGS. Gatembu
7,721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal set aside the High Court ruling that had declared the 2012 appointment of 47 County Commissioners unconstitutional.

What this practically means

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Executive summary

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Following the promulgation of the 2010 Constitution, President Kibaki by Gazette Notice No. 6604 of 11th May 2012 appointed 47 County Commissioners, sparking public outcry and two consolidated suits (a constitutional petition by CREAW and other civil society organizations and a judicial review application by two citizens) before Mumbi Ngugi, J. The High Court declared the President had no power to appoint or deploy the Commissioners, that even if he had, the appointments violated Articles 10 and 27, and that the deployments by Gazette Notice No. 6937 of 23rd May 2012 were unconstitutional, null and void. The Minister for Internal Security appealed through private counsel, prompting a preliminary objection that only the Attorney General could represent the national government. The Court of Appeal rejected the objection: the right to a fair hearing under Article 50 and rule 74 of the Court's Rules entitled the aggrieved Minister to appeal, though it cautioned that where the Attorney General had given written advice against litigation, a Minister litigating personally bears costs personally. On the merits, the Court held the High Court judge misapprehended the transitional framework: Articles 129 to 155 were suspended until the first general election under Section 2(c) of the Sixth Schedule, and the President acted under saved Sections 23 and 24 of the former Constitution by redeploying existing officers. Consultation with the Prime Minister was not statutorily required. While endorsing the judge's progressive reasoning on gender parity and progressive realization as forward-looking, the Court held it could not stand in the transitional context. The appeal was allowed, the High Court judgment set aside, the Court declined to uphold Gazette Notice No. 6937, and each party was to bear its own costs.

Key legal issues

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01

Right to legal representation and appeal where the Attorney General declines to appeal

Holding

The appellant Minister was entitled to be heard through private counsel; the respondents' preliminary objection failed because the Attorney General placed no affidavit evidence of written advice against the appeal.

Reasoning

Article 50 guarantees an unqualified right to a fair hearing and rule 74 of the Court's Rules allows 'any person' affected by a High Court decision to appeal. The Court held that had the Attorney General filed an affidavit detailing reasons for advising against the appeal, the appeal's fate would have been sealed, but a mere statement from the bar was insufficient. Costs risk caveat: where written advice against litigation exists, a Minister litigating personally bears costs personally.

p. 9
02

Constitutional basis of the County Commissioners' appointments/deployments during the transition

Holding

The High Court judge erred: Articles 129-155 were suspended by Section 2(c) of the Sixth Schedule until the first general election, and the President acted under the saved Sections 23 and 24 of the former Constitution.

Reasoning

The learned judge misapprehended the transitional framework by testing the appointments against Articles 129, 131 and 132 of the new Constitution, which were suspended. Sections 23 and 24 of the former Constitution were saved and vested in the President power to constitute and abolish offices and appoint officers. The exercise was a redeployment of existing provincial administration officers, not new appointments.

p. 11
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Consultation with the Prime Minister

Holding

Consultation with the Prime Minister was not a statutory requirement because the deployments were not new appointments requiring National Assembly approval.

Reasoning

Section 29(2) of the Sixth Schedule requires consultation only for new appointments needing parliamentary approval. These were redeployments of existing officers. While consultation would have given the process credibility and assuaged the public in times of transition, the President was not obliged by law to consult.

p. 13
04

Gender parity under Articles 27(6) and 27(8) and progressive realization

Holding

The High Court's reasoning on gender equality was correct and progressive but inapplicable because the appointments occurred in the transitional period under the saved former Constitution provisions.

Reasoning

The Court praised the judge's reasoning - distinguishing the FIDA case and Soobramoney - that the two-thirds gender rule in appointments is not subject to progressive realization where no resource outlay inhibits it. However, had the judge appreciated the transitional situation and the later-enacted National Government Co-ordination Act 2013 governing such appointments, she would have arrived at a different finding.

p. 14
05

Presidential immunity from civil litigation

Holding

The Court declined to dwell on the issue, noting that under the current Constitution a President who violates the law faces only impeachment, whereas the former Constitution had no impeachment provisions.

Reasoning

The Court observed the Constitution is clear that a violating President is subjected to the impeachment process under Article 145; the former Constitution lacked such a mechanism. It said no more on the issue.

p. 14

Legal principles established

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  • During the transitional period before the first general election under the 2010 Constitution, Chapter Nine (Articles 129-155) was suspended and the President exercised executive powers under Sections 23 and 24 of the former Constitution, which were saved; deployments of existing officers made under those saved powers were not unconstitutional.
  • Consultation with the Prime Minister under the National Accord and Reconciliation Act was required only for new presidential appointments requiring National Assembly approval, not for redeployment of existing officers.
  • A party affected by a High Court decision has a right of appeal notwithstanding that the Attorney General, as principal legal advisor, declined to appeal; but where the Attorney General has given written advice with reasons against litigation, a Minister litigating personally cannot have costs paid from public funds.
  • Failure to file a Notice of Change of Advocates on appeal from judicial review or constitutional petition proceedings is not fatal, as Order 9 rule 5 of the Civil Procedure Rules is not imported into Order 53 or the fundamental rights enforcement rules, and courts disregard procedural technicalities in favour of substantive justice.

Court orders

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  1. 1.The judgment and decree of the High Court dated 29th June 2012 set aside
  2. 2.The Court declined the appellant's invitation to uphold Gazette Notice No. 6937 of 23rd May 2012, leaving it to relevant bodies to operationalize Section 15 of the National Government Co-ordination Act 2013 and appoint County Commissioners according to the law
  3. 3.County Commissioners recognized as transitional office holders, much like the Permanent Secretaries, awaiting new appointments
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27(3), 27(6), 27(8), Article 10(2), Article 232, Article 6(1), 6(3), Articles 129, 131, 132, 143(2), 145, 156(4), 22, 23, 50, Article 21(2), Article 3
  • Constitution of Kenya, 2010Sixth Schedule - Sections 2(c), 3(2), 17, 29(2)
  • Former Constitution of KenyaSections 14(2), 23, 24, 26
  • National Accord and Reconciliation Act
  • National Government Co-ordination Act No. 1 of 2013Section 15
  • Public Service Commission Act
  • Civil Procedure RulesOrder 9 rule 5; Order 53
  • Court of Appeal RulesRule 74

Cases cited (3)

  • Advisory Opinion No. 2 of 2012
  • Federation of Women Lawyers & Others v The Attorney General
    H.C.C.C. Petition No. 102 of 2011 (FIDA Case)
  • Soobramoney v Minister of Health (Kwa Zulu Natal)
    1998 (1) SA 765 (CC)
On appeal from
High Court of Kenya
High Court Petition No. 208 of 2012 and Judicial Review Application No. 207 of 2012 (consolidated)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal (rule 74 of the Court's Rules - 'any person' affected by a decision of the High Court may appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Minister for Internal Security and Provincial Administration v Centre for Rights Education & Awareness (CREAW) & 8 others (Civil Appeal 218 of 2012) [2013] KECA 7 (KLR)", Case Analysis (2013). Civil Appeal No 218 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/7/eng@2013-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.