Kiambu County Government & 3 others v Gakuru & others (Civil Appeal 200 of 2014) [2017] KECA 459 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that county laws passed without meaningful public participation, including re-passed Bills, are unconstitutional and void.
What this practically means
#Executive summary
#Key legal issues
#Whether the public participation undertaken for the Kiambu County Finance Act 2013 was adequate
It was not adequate: the public was given barely four days to consider a voluminous Bill, the respondents were shown not to have attended the town hall meetings, and a newspaper advert and a one-day hotel meeting did not satisfy the constitutional duty.
The court applied the objective test of reasonableness drawn from South African authority. Given the nature and importance of the legislation and the intensity of its impact on the public, the measures taken (website notice, newspaper advert, circulation in churches, and meetings on 20th and 21st August 2013) fell short of meaningful participation. The duty is especially onerous for legislation imposing taxes and levies.
Whether the amended Bill required fresh public participation after rejection by the County Assembly
Yes. Where a Bill is rejected and a fresh Bill introduced, the principle of public participation applies afresh; the County Assembly cannot defeat the principle by rejecting a Bill on which the public had input and passing its own Bill without participation.
The appellants conceded they did not subject the resubmitted Bill to further public participation, arguing representation by elected members sufficed. Following the South African authorities, the court held representative and participatory democracy are complementary, and the resubmitted Bill, apparently different from the circulated draft, ought to have been subjected again to public participation before enactment.
The absence of statutory parameters for public participation
Neither the Constitution nor the relevant statutes define the nature, extent and amount of acceptable public participation; courts must provide guidance, and specific legislation may be desirable.
Article 10 and Article 196 and Sections 87 and 115 of the County Government Act 2012 command participation but do not say how it is to be implemented or measured. The court endorsed the principles from the Doctors for Life International case as the guiding framework until such time as specific legislation is enacted.
Legal principles established
#- Public participation must include, and be seen to include, dissemination of information, invitation to participate in the process, and consultation on the legislation.
- A Bill rejected by the County Assembly and re-introduced as a fresh Bill must again be subjected to public participation.
- Public participation must be real, not illusory or a mere formality; the adequacy of participation is judged by an objective test of reasonableness in the circumstances of each case.
- Representation through elected members of the County Assembly does not discharge the constitutional duty of direct public participation in law-making.
Court orders
#- 1.The appeal is dismissed
- 2.Costs to follow the event and be paid to the three respondents who filed written submissions and took part in the hearing of the appeal
- On appeal from
- High Court of Kenya
- Consolidated petitions including Petition No. 72 of 2014 and J.R. Application No. 61 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal against the decision of the High Court (constitutional petition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiambu County Government & 3 others v Gakuru & others (Civil Appeal 200 of 2014) [2017] KECA 459 (KLR)", Case Analysis (2017). Court of Appeal, Nairobi (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/459/eng@2017-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.