REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA IN THE CONSTITUTIONAL & HUMAN RIGHTS DIVISION PETITION NO. 9 OF 2018 IDDI ONIALLAH MUYONGA..............................................................1 ST PETITIONER AGGREY KASEMBELI CHELEKESI.................................................2 ND PETITIONER EZEKIEL ODEOH..................................................................................3 RD PETITIONER VERSUS ELIZABETH WANYONYI, SECRETARY COUNTY PUBLIC SERVICE BOARD.................................................................1 ST RESPONDENT GIDEON SIRAL BOIYO, CHAIRMAN COUNTY PUBLIC SERVICE BOARD................................................................2 ND RESPONDENT THE COUNTY PUBLIC SERVICE BOARD....................................3 RD RESPONDENT THE COUNTY SECRETARY & HEAD OF PUBLIC SERVICE...4TH RESPONDENT GOVERNOR OF COUNTY GOVERNMENT OF BUNGOMA......5TH RESPONDENT JUDGMENT The Petitioner Iddi Oniallah Muyonga (1st Petitioner) Aggrey Kasembeli Chekekesi (2nd Petitioner) and Ezekiel Odeoh (3rd Peitioner) are residents of Malakisi Division within Bungoma County. They have filed this Petition on their own behalf and on behalf of Residents of Malakisi Division seeking orders; 1). THAT this Honourable Court finds that the process of delineating village units and advertisement of recruitment, employment and deployment of village administrators by the respondents was unconstitutional, illegal, irregular and exclusive to the disadvantage of petitioners and other residents of Malakisi Division. 2). THAT this Honourable Court finds that the entire process of delimitation of village units, advertisement, shortlisting, recruitment and deployment of village administrators was unconstitutional, illegal, irregular, unfair and discriminative against the residents of Malakisi Division and therefore null and void. 3). THAT the respondents be compelled to pay the costs of the Application, Petition and compensates residents of Malakisi Division for the injustice meted against them. The Petition is supported by the affidavits of the Petitioners which are identical in substance in which they depone that the County Government of Bungoma enacted the Bungoma County (Decentralized Units) Administration Act 2015 which started a process of delimitation and recruitment of village administration which discriminated against the residents of Malakisi Division; a). That the identification, naming and establishment of village units in Lwandanyi Ward and Malakisi/South Kulisiru Ward did not take into consideration the principles of public participation and deliberately ignored the aspirations, needs, interests and views of the residents of Malakisi Division. b). The criteria and procedure of the delimitation of village units in Lwandanyi and Malakisi/South Kulusiru Wards by the Respondents and/or their agents was NOT participatory, representative and consultative. The said process was not transparent, accountable and did adhered to the principle of rule of law and the due process. It was therefore unconstitutional, illegal, irregular, unfair and discriminative against the residents of Malakisi Division. We wish to state here that there is no single provision in the Constitution of Kenya, 2010 and enabling legislations on devolution that authorizes a County Government or any of its organs to illegally, irregularly and unfairly delineate village units. In this regard, your Petitioners call upon this Honourable court to rise to the occasion and protect the rule of law.
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c). The Respondents herein grossly violated the Constitution of Kenya, 2010 and failed to adhere to the rule of law and due process. The Respondents opposed the application and filed grounds of opposition: 1. THAT the Petitioners have not demonstrated a prima facie case with a likelihood of success to enable them deserve Injuctory orders sought. 2. THAT the entire application is defective bad in law and contrary to public policy and public interest as the Respondents cannot be restrained from performing duties and Responsibilities the constitution and the statutes demands them to perform. 3. THAT the Petitioners herein are guilty of non disclosure of material particulars and hence does not deserve conservatory and equitable orders sought. 4. THAT the application the Petition has been made from the point of ignorance and misinterpretation of the law. 5. THAT the interest of Justice dictates that the application should be dismissed with costs. 6. THAT the 4th & 5th Respondents duly complied with provisions of Article 232 of the Constitution to wit:(a) Did not victimize or discriminate against Malakisi Division on creation of village awards. (b) Followed due process of law. (c) Afforded adequate and equal opportunity to Malakisi division. (d) Shall shortlist people on merit, integrity and on fair competition and is in the process of bringing Administration closer to the people. (e) Shall adhere to high standards of Professional Ethics. By Consent of both parties, the application and Petition were to be heard together and canvassed by way of written submissions. Both parties filed their respective submissions. The Petitioners in their submissions submitted that the Bungoma County (Decentralized Units) Administration Act No. 6 of 2015 which has been used to delineate the village units upon which advertisement for recruitment was done does not have a commencement date and no regulations have been made to operationalize it. Petition submit that Sec. 33 Part III requires enactment of Regulations which has not been done. The Petitioners submit that although they were invited for public participation on 11 th September 2018 at KIE Bungoma Town their views were not considered and the Respondent went a head to advertise for recruitment of village administration. Finally the Petitioners submit that Malakisi Division has been given only one administrative unit while the neighbouring Lwandanyi has been given 6 village Administrative Units. Mr. Makokha for the 4th and 5th Respondent submitted that the Petition is not properly before this court as the Respondent in the presence of the provisions of Sec. 16 of the Act established a Task Force with specific mandate to make recommendation on delineation, and names of village units and that such Task Force is to take into account, population, size, geographical features, community of interest, historical economic and cultural ties and means of communication. Further Counsel submits that the Petition is not supported by a supporting affidavit and which is fatal and makes the petition incomplete. This court appreciates that the petitioners are unrepresented, but from the pleadings and submissions this court can discern that the petition is premised on one main ground. (1) That the delineation of village units in Bungoma County as it relates to Malakisi Division was unfair, discriminatory and against constitutional principle of fairness and equity. The issues for determination by this court can be summarized as follows; (1). Was there discrimination in the delineation of village administrative units in relation to Malakisi? In Rose Wangui Mambo & 2 others Vs. Limuru County Club & 17 others [2014] eKLR addressed itself to this aspect and in borrowing from the case of Peter K. Waweru Vs. Republic [2006] eKLR defined discrimination as follows:- “….Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by …..sex whereby persons of one such description are subjected to………restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description……..Discrimination also means unfair treatment or denial or normal privilages to persons because of their race, age, sex…..a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured”
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Article 27 of the Constitution is grounded on the UN Declaration of Human Rights which provides for the principle on non-discrimination. The Principle of equal and non-discrimination has its underpinnings in various International conventions which now form part of our laws by dint of Article 2(5) and (2)(6). The United Nations Universal Declaration on Human Rights (UDHR) provides at Article 1 that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Discrimination of any nature is abhorred by not only by our Constitution but also by UN declaration of Human Rights. For the petitioner to demonstrate that he has been discriminated against he must show; 1) That he was afforded different treatment. 2) That the treatment is attributable wholly or substansing done to his tribe or location, or class. 3) That such treatment was not afforded to other people or class of people. 4) On that he was denied privileges or opportunity available to others on the basis of this race or tribe. The criteria for delineation of boundaries and village units is provided for in Section 14, 15, of the Act. Bungoma County (Decentralized Units) Administration Act, Act No. 60 of 2015. Section 14 (1) The County executive shall, subject to subsection (2), and the approval of the County Assembly, delineate and establish village units of administration for the purposes of this Act. Section 14 (2) A village unit shall be delineated or established except in accordance with the recommendation of the Task Force Committee established in accordance with Section 16 of this Act. Section 15 (1) The administrative boundary of every devolved unit shall be defined(a) In the case of a sub-county along the constituency boundary existing in the county on the date of commencement of this Act; (b) In the case of award, boundary existing in the sub-county on the date of commencement of this Act; (c) In the case of a village, along a sub-location boundary existing in the ward under the national government structure of administration on the first day of January the year 2002. (d) In the case of Mlango, the boundary of a village existing in the sub-location under the national government structure of administration on the date of commencement of this Act; and (e) In any other case, as may be determined by the Task Force Committee in accordance with this Act. (2) Despite subsection (10), the sub-counties, wards, villages and Milango recognized for the purpose of this act on the date of commencement shall be those specified in the Third Schedule. (3) The boundaries of devolved units shall not be varied to exceed one third of the existing administrative units in the county in a period of ten years. (4) The devolved units created under this Act shall not become effective without the approval of the County Assembly. The Petitioners in their Petition claim discrimination in delineation of village Administrative Units. The Respondent in their response submitted that the delineation exercise was fair and have annexed the population as hereunder. Bungoma County (Decentralized Units) Administration. THE THIRD SCHEDULE. Name of Name of Approx pop of No. of Village Units Sub-County Ward Ward villages 1. MT. Cheptais 33,373 6 ELGON Kipsis Ngachi Chebwek Kimaswa/Kisongo
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Walanga Chepkube Chemondi Chesikaki Chesikaki 27,894 5 Sasur Toroso Kimabole Cheyuk Kaimagul Korng’otuny Chepyuk 29,494 6 Kubura Chepkurkur Emia Kamneru Masaek Kapkateny 33,234 5 Chelebei Sinoko Sacho Kaboywo Kaptama Chepkitale Kaptama 42,563 6 Kongit Chemoge Kaborom Namorio/Kipyeto Kapsokwony Elgon Elgon 36,937 6 Chemwesus Sambocho/Koshok Kipchiria/Masindet 2. SIRISIA Namwela 31,941 5 Kikai/Central Namwela
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Kolani Mutonyi Menu Toloso Ndakaru Bukokholo/Butonge Sirisia Township Malakisi/South Kulisiru 40,652 6 Wekekha Chebukutumi Chongoi Machakha Mayekwe Chepkuyi Lwandanyi 46,141 6 Wamono Sitabicha/Mwalie/Tamulega Kapkara Nairumbi Sikusi Namilama 3. KABUCHAI Kabuchai/Chwele 41,566 6 Busakala Wabukhonyi Mukhweya Kisiwa Sirare/Nalondo West Nalondo 38,407 5 Nangwe Luucho Kasosi Bwake/Luuya 39,378 6 Nangili Nasaka Mabanga Khalitaba
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Luanda Mabwi Kuywa Sikulu Kibichori Mukuyuni 44,039 6 Sichei Milembe Lukhome Muanda Lumboka 4. BUMULA South Bukusu 26,820 4 Mateka Kimatuni Lunao Bumula Bumula 37,008 5 Kimatuni Mabusi Syekumulo Namatotoa Namusasi Khasoko 16,270 4 Mungore Khasoko Mukhuma Syoya Kabula 24,062 4 Malinda Wamunyiri Tulukui/Siyombe Nakhwana Khasolo Kimaeti 42,359 6 Bitobo Kimaeti Kamurumba
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Lwanja Ng’oli West Bukusu 23,188 4 Kibuke Mayanja Musakasa East – Siboti Siboti 37,685 5 Kisawayi Mukwa Masielo Nalutiri Kisuluni 5. KANDUYI Bukembe West 23,546 4 Khaoya/Muyayi Ekitale Misanga Bukembe Bukembe East 31,009 5 Tembelela Kongoli Sudi Lower Township Township 22,150 3 Central Township Upper Township Namuyemba Khalaba 28,343 3 Bondeni Khalaba Siritanyi Namasanda Namamuka Musikoma 43,975 6 Musikoma Siyo Samoya East sang’alo 37,420 6 Mwikhupo
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Mwibale Khaweli Lutungu Mechimeru Kimugui Mungeti/Mayanja Nabukhisa Kimukung’ Marakaru/Tuuti 41,480 6 Makutano Kibabii Bukananachi Sang’alo Namwacha West Sang’alo 38,399 5 Bulondo Samulia Ranje Mihuu Chetambe 6. WEBUYE Mitukuyu Mihuu 43,830 6 EAST Magemo Misimo Nabuyoli Lutacho Wabukhonyi/Misemo Makuselwa Ndivisi 46,048 6 Marinda Sinoko Sitabicha Maraka 41,124 6 Nang’eni Township East Lukhoba
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Lurare Muchi Lufwindiri/Khamoto Mukhe Sirende 7. WEBUYE Misikhu Misikhu 49,031 6 EAST Nambami Kituni Makhese Sitikho Kuywa Khalumuli Sitikho 43,554 6 Milo Namutali Kamimanyi Upper Malaha Lower Malaha Matulo 26,492 6 Lower Matulo Hospital village Township West Bokoli Mahanga Bokoli 29,418 4 Miendo Matisi Daraja-Mungu Siuna Kibunde 8. KIMILILI Kibingei 39,946 6 Kitoyi Lutonyi Khwiroro Kimilili 42,043 6 Chelekei
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Bahai Matily Lwanda Township Sitabicha Nasusi Nameme Maeni 28,065 4 Kamasielo Sikhendu Mbongi Makhonge Mapera Kamukuywa 43,923 6 Kimakwa Musembe Nabikoto Makutano/Nzoia Musembe Makunga 9. TONGAREN Mabakalo 37,362 6 Mbakalo Karima Kibisi Makhanga Naitiri Sango Naitiri/Kabuyefwe 44,079 6 Siumbwa Pwani lungai Mukuyuni Nabing’eng’e Milima 38,664 4 Milima Maliki
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Muliro Tabani Ndalu 24,516 4 Ndalu Mulembe Binyenya Kakamwe Tongaren 39,308 5 Mabusi Tongaren Lukhuna Mitua Soysambu Soysambu 33,409 5 Narati Misanga Nalondo From the table above it is clear that Malakisi/South Kulisiru with a population of 40,652, was given 6 administrative units just like Lwandanyi with a Population of 46,141. Indeed from a clear perusal of the table it is evident that the ward was given the highest number of administrative units in the County. From the above table I am not persuaded that the petitioners or their ward was denied any privilege or right which was available to all the other wards in the County when delineating the village units. I therefore do not find any act of discrimination on the part of the Respondents. Consequently this petition and the application filed by the Petitioners is found without merit and is dismissed. Each party to bear its own costs. Dated and Delivered at Bungoma this 21st day of May, 2019. S.N. RIECHI JUDGE
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