Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition (Mandera County; filed September 2020)· [2020] KEELRC 119 (KLR)

Abdiaziz Hussein Abdi v Governor, Mandera County & 3 others; Ethics & Anti-Corruption Commission & 2 others (Interested Parties) [2020] KEELRC 119 (KLR)

Environment and Land Court / High Court (Constitutional Petition)
11 December 2020
4,784 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

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

#
After Mandera County's Governor paid four dismissed County Executive Committee Members their terminal dues in compliance with Petition 21 of 2020, he nominated three new CEC members and appointed a Chief Officer for Medical Services. A resident of Mandera County petitioned the High Court seeking declarations that the Governor violated Articles 10(2)(c), 73(1)(a)(i), (iv) and 201(d) of the Constitution by creating a fresh wage bill of over Kshs.50,000,000, quashing of the nominations and appointments, and directions that the positions be filled in acting capacity for two years. The Respondents opposed, arguing the petition failed the Anarita Karimi Njeru precision threshold, was an abuse of process mounted as proxy litigation for the former CEC members, and interfered with the Governor's executive powers and the County Assembly's independence. The court framed four issues. It found the petition met the Anarita Karimi Njeru threshold, since the Petitioner pleaded with reasonable precision the wasteful expenditure alleged and the constitutional provisions infringed. However, the 4th Respondent was wrongly joined, having no functions related to the acts complained of, and the Interested Parties were improperly joined as their personal stake was never articulated. On the merits, the court declined to grant any relief: the Petitioner had filed a public petition before the County Assembly and been invited to a hearing on 14th September 2020, so, under Standing Order 206(2) and the exhaustion doctrine, the petition was premature. Further, because the Respondents had merely complied with un-stayed, unreviewed orders in Petition 21 of 2020, the orders sought would amount to a review or appeal and offend res judicata. The petition was dismissed with no orders for costs, it having raised a public interest issue.

Key legal issues

#
01

Whether the petition met the Anarita Karimi Njeru precision threshold

Holding

The petition met the threshold; the Petitioner pleaded with reasonable precision the actions complained of and the provisions infringed

Reasoning

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.

p. 6
02

Whether the 4th Respondent and Interested Parties were properly joined

Holding

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

Reasoning

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.

p. 6
03

Whether the nomination and substantive appointment of new CEC members and the Chief Officer contravened the Constitution

Holding

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

Reasoning

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.

p. 6
04

Whether the reliefs sought should be granted

Holding

Reliefs refused; the petition was dismissed with no orders for costs

Reasoning

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.

p. 7

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. 1.The petition is dismissed
  2. 2.No orders for costs, the petition having raised a public interest issue

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10(2)(c), 41, 47, 48, 50, 73(1)(a)(i), (iv), 156(4), 159, 174, 201(d), 201
  • County Governments Act, Act No. 17 of 2012Sections 3, 6(1) and (2), 12(7), 15, 43, 45(1)(5), 77, 107
  • County Assembly Service ActSection 11
  • Public Finance Management Act, Act No. 18 of 2011Sections 3 and 107
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Mandera County Assembly Standing OrdersStanding Order 206(2)

Cases cited (11)

  • Abdiaziz Sheikh Maad & 3 Others v the Governor, Mandera County & 3 Others, Petition 21 of 2020
  • Godfrey Paul Okutoyi (suing on his own behalf and on behalf and representing and for the benefit of all past and present customers of banking institutions in Kenya) v Habib Olaka – Executive Director (Secretary) of the Kenya Bankers Association (being sued on behalf of Kenya Bankers Association) & Another
    [2018] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] KLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 Others
    [2009] eKLR
  • Trusted Society of Human Rights Alliance v AG & 2 Others
    [2012] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Francis Karioki Muruatetu & another v Republic & 5 others
    [2016] eKLR
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another
    [2017] eKLR
  • Republic v IEBC & 2 Others ex parte Alinoor Derow Abdullahi & Others
    [2017] eKLR
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.