Abdiaziz Hussein Abdi v Governor, Mandera County & 3 others; Ethics & Anti-Corruption Commission & 2 others (Interested Parties) [2020] KEELRC 119 (KLR)
The bottom line
#The High Court dismissed a public interest challenge to Mandera County's new CEC appointments because the petitioner first had to complete a pending County Assembly process.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the Anarita Karimi Njeru precision threshold
The petition met the threshold; the Petitioner pleaded with reasonable precision the actions complained of and the provisions infringed
The court applied the Trusted Society/Mumo Matemu elaboration of Anarita Karimi Njeru, holding the test is substantive rather than formalistic. The Petitioner pleaded the wanton waste of public funds by paying dismissed CECs for full contractual terms then replacing them, citing Articles 10(2)(c), 73(1)(a)(i), (iv) and 201(d). The Respondents' replies showed they understood the complaints.
Whether the 4th Respondent and Interested Parties were properly joined
The 4th Respondent was wrongly joined as no cause of action or violation was attributed to it; the Interested Parties were also improperly joined as the Petitioner never articulated their personal stake
A perusal of Section 12(7) of the County Governments Act and Section 11 of the County Assembly Service Act showed none of the 4th Respondent's functions related to the acts complained of. As for the Interested Parties, relying on Muruatetu, their personal stake was never set out in the pleadings or submissions.
Whether the nomination and substantive appointment of new CEC members and the Chief Officer contravened the Constitution
The court did not determine the merits; it held the petition premature for failure to exhaust the County Assembly public petition process and that the orders sought would offend res judicata against Petition 21 of 2020
Standing Order 206(2) mandated the Committee to respond to public petitions within 60 days; the Petitioner had been invited to a hearing on 14th September 2020 but filed this petition first. Applying the exhaustion doctrine and separation of powers, the court's jurisdiction should be invoked only after the Assembly determines the petition. Additionally, the Respondents had complied with un-stayed orders in Petition 21 of 2020, which expressly permitted filling vacancies once dues were paid.
Whether the reliefs sought should be granted
Reliefs refused; the petition was dismissed with no orders for costs
The orders would amount to a review or appeal against Petition 21 of 2020 and offend res judicata. The court further noted the doctrine of separation of powers required restraint while the public petition before the County Assembly remained undetermined. No prejudice would befall the Petitioner, who retains recourse to the court after the Assembly's determination.
Legal principles established
#- A party must exhaust alternative dispute resolution mechanisms, including a pending public petition before the County Assembly, before invoking the court's jurisdiction
- Compliance with court orders that have not been stayed, reviewed or set aside cannot be challenged collaterally; doing so offends res judicata
- Constitutional petitions need not meet mathematical precision; the test is whether the complaint gives proper notice of the violation alleged
- Separation of powers requires courts to exercise restraint and refrain from directing other arms of government on how to exercise their mandate
Court orders
#- 1.The petition is dismissed
- 2.No orders for costs, the petition having raised a public interest issue
- Jurisdiction invoked
- Articles 10(2)(c), 73(1)(a)(i), (iv), 201(d), 159 and 48 of the Constitution of Kenya, 2010 (petition for enforcement of constitutional rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdiaziz Hussein Abdi v Governor, Mandera County & 3 others; Ethics & Anti-Corruption Commission & 2 others (Interested Parties) [2020] KEELRC 119 (KLR)", Case Analysis (2020). Petition (Mandera County; filed September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/119/eng@2020-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.