The Hon. Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 others
The bottom line
#Kenya's Court of Appeal confirmed that creating new administrative units without public participation is unconstitutional, and dismissed an MP's challenge to that finding.
What this practically means
#Executive summary
#Key legal issues
#Proper joinder of the Member of Parliament as a party to the constitutional petition
Although an MP is not a juristic person capable of suing or being sued, the appellant's joinder ground fails because it was not raised before the trial court, the appellant participated by opposing the petition, and Rule 5(b) provides that misjoinder does not defeat a petition
The Court accepted that an MP's office is not a juristic person, but held the point was not raised at trial; the appellant's contention there was merely that no remedies were sought against it. Having elected to participate and oppose the petition, the appellant could not later complain of improper joinder. Rule 5(b) of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules expressly bars defeat of a petition for misjoinder or non-joinder.
Whether the Peter Odoyo Ogada judgment was in rem and whether the petition was res judicata
The Court of Appeal decision in Peter Odoyo Ogada was a judgment in personam, limited to Suba North and Suba South constituencies, and therefore the petition was not res judicata
The Court applied the Black's Law Dictionary definitions of judgments in rem and in personam. The Ogada judgment only set aside the decision relating to Suba North and Suba South constituencies and did not affect the findings in JR No. 120 of 2012 concerning Daadab and related constituencies. That decision, not having been appealed, reviewed or set aside, remained in force, so the 1st respondent's petition raising distinct issues was not res judicata.
Public participation in the creation of administrative units
The creation or alteration of administrative units is a weighty matter in which the public has a stake, and the absence of public participation renders the creation of such units non-compliant with Articles 10 and 189(1) of the Constitution and Section 4 of the National Government Coordination Act
Article 10 expressly lists participation of the people as a national value binding all state organs whenever they make or implement public policy decisions. Section 4 of the National Government Coordination Act requires the national government to act in accordance with those values. On the record, no meaningful engagement with the public preceded the creation of the new locations and sub-locations, so the High Court's finding could not be faulted.
Retrospective application of the National Government Coordination Act
The Act was correctly applied because the impugned advertisements were made in 2015, after the Act came into force in 2013; the units' earlier creation in 2010 did not insulate the 2015 recruitment advertisements from the Act
The petition was founded on the advertisements dated 15th May 2015, not on the original creation of the units in 2010. Since the Act was in force when those advertisements were published, the High Court was right to apply Section 4 and find the 2nd respondent in breach of Articles 10, 189, 201(d) and 232 of the Constitution and the amended Legal Notice No. 14 of 2012.
Legal principles established
#- A petition shall not be defeated by reason of the misjoinder or non-joinder of parties; a party who claims improper joinder must seek to be disjoined or opt not to participate, and cannot complain after participating in the proceedings
- The duty of a first appellate court is to re-evaluate the evidence tendered in the trial court and come to its own findings and conclusions
- Public participation is a constitutional requirement in the creation or alteration of administrative units, as a national value under Article 10 that binds all state organs
- State organs must act within the confines of existing court orders and statutory boundaries; purporting to create new administrative units in disregard of an unappealed court decision amounts to undermining court orders and the Constitution
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- HC Petition No. 238 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (the judgment states 'This is a first appeal'); no specific constitutional or statutory provision is cited in the judgment for the basis of the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Hon. Member of Parliament Balambala Constituency v Abdi Ahmed Abdi & 7 others", Case Analysis (2020). Civil Appeal No. 424 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/157/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.