Charles Chege Gitau v County Assembly of Kiambu & 2 others

c. That this Honourable Court be pleased to issue such further or other order(s) as it may deem just and expedient for the ends of justice. d. That the costs of this application be provided for. 3. However, before delving into the merits of this application and the grounds advanced in its support, it is evident that the substantive prayer sought in the Chamber Summons application which is prayer (b), is aimed at stopping the public participation forum scheduled between 25th June, 2024 and 28th June, 2024. This period has since elapsed, rendering the prayer sought as having been overtaken by events. 4. It is a fundamental principle of law that courts do not issue orders in vain since they exist to grant effective relief, but not to make futile declarations where events have already unfolded. As such, an application seeking to prevent an event that has already taken place or is in the past becomes moot and incapable of enforcement. This position was emphasized in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others [2018] eKLR, where the Supreme Court held that:“ Courts will not act in vain and will not issue orders where the subject matter has been overtaken by events, as judicial resources must be applied to matters where effective relief can be granted.” 5. Similarly, in the case of Nairobi Metropolitan PSV Saccos Union Limited & 25 Others v County Government of Nairobi & 3 Others [2014] eKLR, the Court declined to grant injunctive relief where the impugned action had already taken place, holding that:“ Where a court order is sought in respect of an event that has already occurred, the application becomes purely academic and incapable of enforcement.” 6. Consequently, it is this Court’s view that the doctrine of mootness applies in this instance. Once the scheduled public participation forum or period concluded on 28th June, 2024, there was no longer an existing or live controversy requiring the intervention of the court. Courts adjudicate actual disputes and do not entertain academic or hypothetical applications. As at the time of writing this ruling, the Petitioner/Applicant has neither demonstrated nor alleged that further public participation forums are planned or that the Respondents intend to repeat the impugned actions, making the relief sought entirely spent and inoperative. 7. Additionally, Article 159(2)(b) of the Constitution of Kenya provides that justice shall not be delayed, and courts must avoid engaging in matters that serve no practical legal purpose. It would be contrary to the principles of judicial efficiency for this court to issue an order concerning an event that has already occurred or a period of time which has since lapsed. In light of the foregoing, this Court finds that the Chamber Summons application dated 23rd June, 2024 is spent, moot, and overtaken by events. Consequently, the said application is hereby dismissed with no orders as to costs. 8. Upon reviewing the court record, it is evident that on 30th April, 2024, this court directed that both the Petition and the Notice of Motion application dated 12th April, 2024 be canvassed simultaneously by way of written submissions and both parties have complied by filing the necessary submissions. Notably, the issues raised in the Notice of Motion application substantially mirror those in the Petition, as they arise from the same factual circumstances and seek similar ultimate reliefs. 9. Specifically, in the Notice of Motion application, the Petitioner has sought interim injunctive orders restraining the 2nd and 3rd Respondents from swearing in nominees of the twelve (12) municipal boards, as well as an order barring the said nominees from undertaking any official functions pending the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 2

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determination of the Petition. Conversely, in the Petition, the Petitioner seeks broader substantive reliefs, including the nullification and reconstruction of the municipal boards in accordance with constitutional and statutory requirements. 10. The primary purpose of the reliefs sought in this Notice of Motion application was to serve as temporary measures aimed at preserving the subject matter pending the determination of the main Petition. However, given that the court now has substantive submissions that adequately address the main issues in dispute, it would serve no practical purpose to entertain the merits of the interlocutory application when the final determination of the Petition is at hand. 11. The principle of judicial efficiency demands that courts should focus on resolving substantive disputes rather than engaging in interlocutory matters when the core controversy can be conclusively determined. This is in line with Article 159(2)(b) of the Constitution, which mandates courts to administer justice without undue delay. The expeditious disposal of cases is a fundamental requirement of fair and effective adjudication, ensuring that judicial resources are directed towards resolving the main dispute rather than peripheral issues. 12. Courts have emphasized the need to prioritize the determination of substantive issues over interlocutory applications, especially where doing so serves the interests of justice and judicial economy. In the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court held that:“ The guiding principle in granting conservatory orders is whether the orders sought are necessary to preserve the substratum of the matter pending substantive determination. However, where no purpose would be served by granting such orders, the court should not issue them." 13. Similarly, in Judicial Service Commission v Speaker of the National Assembly & Another [2013]eKLR, the court underscored the importance of focusing on substantive issues rather than interlocutory reliefs when it stated that:“ A court should, whenever possible, avoid dealing with Interlocutory matters that would have the effect of unnecessarily delaying the final resolution of the substantive case.” 14. In the present case, since the substantive Petition is ready for determination, it is judicially prudent to proceed to the final judgment rather than examining the interim relief sought in the application, which was merely intended to hold the matter in abeyance pending the resolution of the main dispute. The doctrine of proportionality, which underpins the exercise of judicial discretion, dictates that judicial resources should be applied toward resolving the primary dispute rather than expending time on matters that would be addressed in the final Judgment. 15. Therefore, having received comprehensive submissions on the Petition, this Court is best placed to determine the substantive issues in controversy, rather than engaging with an interlocutory application that was intended to be provisional in nature. The determination of the main Petition is expected to serve both the interests of justice and the principles of judicial economy, ensuring efficient and expeditious disposal of the dispute. 16. Thus, in the Petition dated 12th April, 2024, the Petitioner seeks the following reliefs: a. A declaration be and is hereby issued that there was no proper public participation as there was no requisite information regarding the nominees to the public. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 3

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b. A declaration be and is hereby issued that the municipal board nominees were not properly transmitted to the county assembly as per Section 6(2) and (5) of Public Appointments (County Assemblies Approval) Act No.5 of 2017 and vetting done was null and void. c. A declaration be and is hereby issued that the Municipal Board Members nominee list violates Section 14(3) and (5) of Urban Areas and Cities Act No.13 of 2011 for want of representation from various stakeholders contemplated in Section 14(3) and 14(5). d. A declaration be and is hereby issued that the Municipal Board Members Nominee list violates Section 14(4) of Urban Areas and Cities Act No.13 of 2011 and Article 175(c) of the Constitution of Kenya, 2010, for lack of gender equality, representation of persons with disability, youth and marginalized persons. e. An order be and is hereby made to the 2nd Respondent for Immediate reconstruction of new municipal boards conforming to the Spirit of the applicable Laws. f. Costs of this Petition. g. Any other relief or orders that this Honourable Court shall deem just and fit to grant. 17. The Petitioner avers that on 29th March, 2024, the 2nd Respondent, in purported compliance with Section 14 of the Urban Areas and Cities Act No. 13 of 2011, published a Public Notice through advertisements in the local daily newspapers inviting members of the public to submit memoranda and attend a scheduled approval hearing regarding the appointment of members to the Municipal Board. The said advertisement further indicated that the list of proposed nominees was available for viewing on the 2nd Respondent’s official website. However, the Petitioner contends that the said list was grossly deficient in content and transparency, as it only contained the names of the nominees without disclosing critical information necessary for the public to meaningfully participate in the vetting process. Specifically, the list failed to disclose the age, gender, ethnicity, and whether any of the nominees were persons living with disabilities. 18. According to the Petitioner, this lack of detailed information rendered the public participation process ineffective, superficial, and non-compliant with the constitutional and statutory requirements of public participation. The Petitioner asserts that such material omissions constituted an anomaly that has fundamentally undermined the essence of public participation and accountability in governance and that the list of nominees ought to have been amended to include all relevant demographic and qualification data to ensure transparency and inclusivity. 19. The Petitioner further claims that despite the flawed and inadequate notification to the public, the relevant County Assembly Committees proceeded with the vetting of the nominees between the 5th and 9th April, 2024. Thereafter, the names of the vetted nominees were forwarded to the Plenary of the County Assembly and were tabled for consideration on 12th April, 2024. The Petitioner states that the County Assembly adopted the list without making any modifications or addressing the public concerns that had been raised, including his own written submissions. The Petitioner maintains that the entire nomination and approval process was undertaken in contravention of Section 6 of the Public Appointments (County Assemblies Approval) Act No. 5 of 2017, which mandates the appointing authority to publish detailed information concerning the nominees in order to facilitate informed public participation. 20. Furthermore, the Petitioner submits that the Respondents failed to comply with Section 87(a) of the County Governments Act No. 17 of 2012, which obliges county governments to promote participation by providing timely access to information, data, documents, and other relevant materials. Similarly, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 4

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the Petitioner asserts that Article 196(1)(b) of the Constitution, which requires that county assemblies facilitate public participation in the legislative and other business of the assembly and its committees, was ignored. By failing to properly inform and involve the public in a meaningful way, the Petitioner argues that the Respondents violated the Principles of Devolved Governance under Article 174(c) of the Constitution, which emphasizes the right of communities to manage their own affairs and to be involved in governance decisions affecting them. 21. Moreover, the Petitioner strongly contends that the nomination of the members to the Municipal Board was done in breach of Section 14(3) of the Urban Areas and Cities Act No. 13 of 2011, which prescribes that the public must be adequately consulted before appointments are made. The Petitioner notes that the Respondents have not furnished any tangible evidence to prove that such public consultation was in fact conducted or that any public input was considered in the vetting process. 22. In addition, the Petitioner submits that the composition of the list of nominees contravenes Section 14(4) of the Urban Areas and Cities Act, which provides that not more than two-thirds of the members appointed to the Board shall be of the same gender. The Petitioner emphasizes that this statutory provision is grounded in Article 175(c) of the Constitution, which enshrines the principle of gender equity in county governance. 23. He further argues that the Respondents’ list fails to demonstrate compliance with Article 54(2) of the Constitution, which mandates that at least five percent (5%) of members of elective and appointive bodies shall be persons with disabilities. According to the Petitioner, the glaring absence of such representation in the nominees’ list is a testament to the Respondents’ disregard for constitutional and statutory obligations on inclusivity and affirmative action. The Petitioner asserts that unless the nomination process is annulled and restarted in compliance with the law, the Municipal Board will remain unconstitutional, illegitimate, and exclusionary. 24. The Respondents opposed the Petition through a Replying Affidavit sworn on 26th April, 2024 by Ms. Waithira Waiyaki, the County Attorney of the 3rd Respondent. In her affidavit, she deposed that the application which had been filed alongside the Petition is fatally defective and incompetent, the same having been overtaken by events, since the nominees had already been gazetted and formally sworn in as members of the respective Municipal Boards. She further contends that the issues raised in this Petition are substantially similar to those raised in Thika ELC Petition No.E005 of 2023 – James Gacheru Kariuki & Others v The County Government of Kiambu & Others. According to her, that earlier Petition also challenges the conferment of municipal status and disputes the legality of the nomination, vetting, and appointment processes on grounds of insufficient public participation. 25. The County Attorney has argued that because the subject matter and legal issues in both Petitions are substantially the same, the doctrine of res sub judice, as enshrined under Section 6 of the Civil Procedure Act, applies, and thus this Petition ought to be struck out or, in the alternative, stayed to avoid the risk of conflicting judicial pronouncements on the same matter. She emphasizes that allowing the Petition to proceed would violate the principles of judicial economy and create confusion in the administration of justice. 26. Further, the County Attorney has further averred that the Petitioner had failed to demonstrate with specificity how his constitutional rights or any rights under the law had been infringed by the actions of the Respondents. She maintains that the process of nomination, vetting, and appointment of Municipal Board members was conducted in accordance with all relevant legal and procedural requirements. She explains that the appointment process began with a public call for applications, where interested candidates submitted their applications for consideration. That thereafter, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 5

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appointing authority, in this case the Governor or the relevant County Executive Officer, then undertook an administrative function of shortlisting and nominating candidates from among the Applicants based solely on merit and qualifications. These nominees were then forwarded to the County Assembly for vetting by the relevant departmental committees, at which point the public was invited to submit their views and objections through written memoranda or oral presentations. The County Attorney has emphasized that public participation was not required at the stage of nomination by Governor, but rather during the vetting stage by the County Assembly. 27. Upon conclusion of the vetting process, the Assembly’s departmental committees prepared reports with their recommendations and presented them before the Plenary of the Assembly, which subsequently adopted the reports and communicated the resolutions to the appointing authority, who then gazetted and formally appointed the successful nominees. According to her, the public participation was sufficiently accommodated within this multi-staged process and the Petitioner’s claims of exclusion were therefore unfounded. 28. The County Attorney also defended the Respondents’ compliance with legal notice requirements by asserting that the notification of the nomination process, published on 13th December, 2023, met all the legal criteria outlined under Section 6(3) and (4) of the Public Appointments (County Assemblies Approval) Act No. 5 of 2017. She further asserted that the public was adequately notified and given an opportunity to participate through a subsequent advertisement issued on 29th March, 2024. This notice, she stated, clearly invited the public to submit memoranda and provided information that the Governor had nominated 74 candidates for consideration and approval by the County Assembly to serve as Municipal Board members, pursuant to Section 14 of the Urban Areas and Cities Act, 2011. The notice further informed the public that the list of nominees was available for inspection on the County Government’s official website. 29. She emphasized that the vetting proceedings were conducted in public, in an open forum, and members of the public with any concerns were afforded the opportunity to object to any nominee by filing an affidavit on oath detailing the grounds of unsuitability. In fact, the Petitioner did submit a written objection through a letter dated 2nd April, 2024. However, she noted that the Petitioner failed to substantiate or follow up his concerns with any evidence or sworn affidavit. 30. With regard to the allegations of gender disparity and lack of representation of persons with disabilities, the deponent argued that the Petitioner had not provided any credible evidence to show that there were qualified applicants who were denied nomination purely on the basis of gender or disability. She asserted that under Section 14(6) and 14(7) of the Urban Areas and Cities Act, the qualifications for appointment to the Municipal Boards are clearly stipulated and must be met by any proposed nominee. According to her, the Respondents considered only individuals who satisfied these statutory criteria. 31. Furthermore, the County Attorney maintained that while the principles of gender equity and inclusion of persons with disabilities are important, their implementation, particularly the realization of the two-thirds gender rule under Article 175(c) and the 5% representation of persons with disabilities under Article 54(2) of the Constitution, is subject to progressive realization. She submitted that these constitutional principles are not absolute and cannot be enforced immediately where structural or logistical constraints exist. As such, the composition of the Board should be viewed in light of the county’s efforts to incrementally meet these obligations. 32. In his further affidavit filed in response to the Respondents’ affidavit, the Petitioner has strenuously denied that this Petition is sub judice Thika ELC Petition No. E005 of 2023. He has asserted that he is not a party to that suit and that the issues raised therein are distinct from those in the present case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 6

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While the earlier Petition may touch on conferment of municipal status, it is the Petitioner’s argument that this Petition specifically challenges the legality of the nomination, approval, and appointment process of Board members for non-compliance with the Constitution and enabling legislation. He has further contested the veracity of the County Attorney’s claim that the nomination notices issued were compliant with Section 6(1) of the Public Appointments (County Assemblies Approval) Act No. 5 of 2017. He has emphasized that the notices failed to include key information necessary for the public to meaningfully engage in the vetting process, such as nominees’ backgrounds, qualifications, and demographic representation. 33. The Petitioner has also underscored that the Respondents did not dispute that the nominees’ list failed to comply with the two-thirds (2/3) gender rule and had no representation of persons with disabilities. He has dismissed the Respondents’ position on progressive realization as an attempt to abdicate immediate legal obligations. Additionally, the Petitioner has argued that the purported public participation exercises were conducted on a public holiday, which further invalidated their legitimacy and disenfranchised many would-be participants. He has maintained that the process was a mere formality, conducted in bad faith, and designed to exclude public scrutiny. 34. In further support of their respective positions, both parties filed written submissions, which the Court has duly considered. The Petitioner filed his submissions dated 13th May, 2024, wherein he has amplified the constitutional and statutory violations allegedly committed by the Respondents and reiterated the reliefs sought in the Petition. On their part, the Respondents filed their submissions dated 4th June, 2024, urging the Court to find the Petition without merit and to uphold the regularity of the impugned nomination and appointment process. have carefully perused and analyzed the parties’ submissions together with the cited authorities and statutory provisions, and I shall highlight the salient arguments advanced by each party in the course of my analysis and determination of the issues raised in this Petition. Analysis and Determination 35. I have carefully considered the Petition, the responses thereto, the parties’ respective affidavits and annexures, as well as the written submissions and the applicable legal framework. I find that this Court has been called upon to examine the legality and constitutionality of the nomination, vetting, and appointment process of the members of the Municipal Boards within Kiambu County, as well as the issue on whether the process complied with the principles of public participation, transparency, inclusivity, and fairness, as envisaged under the Constitution and relevant statutory provisions. 36. Thus, upon reviewing the pleadings and the issues raised by both parties herein, the Court is of the view that the following issues arise for determination: a. Whether the Petition is sub-judice in light of Thika ELC Petition No.E005 of 2023; b. Whether the nomination, vetting and appointment of Municipal Board Members was done in compliance with the Constitution, the Urban Areas and Cities Act No. 13 of 2011, and the Public Appointments (County Assembly Approval) Act No. 5 of 2017; and, c. Whether the Petition is merited for the orders sought to be granted. Whether the Petition is Res-judicata 37. The first issue for determination is whether the instant Petition is barred by the doctrine of sub-judice, pursuant to Section 6 of the Civil Procedure Act, due to the existence of Thika ELC Petition No. E005 of 2023, which is said to concern similar subject matter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 7

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38. The Respondents assert that this Petition offends the sub-judice rule as the subject matter, that is, whether the appointment of the members of the Municipal Board is allegedly the same as that raised in the aforementioned ELC Petition. They argue that allowing the Petition to proceed would occasion duplicity of suits, waste judicial time, and create the risk of contradictory findings. 39. In rebuttal, the Petitioner maintains that he is not a party to the ELC Petition and that the matters in dispute are not the same. The Petitioner contends that this Petition is grounded on alleged violations of constitutional principles in the nomination, vetting, and appointment process of Municipal Board Members, particularly violations of Articles 10, 27, 54, 55, and 232 of the Constitution on public participation, gender equity, and inclusion of marginalized groups. The Petitioner argues that these are distinct issues not addressed in the ELC Petition. 40. Section 6 of the Civil Procedure Act provides:“ No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed." 41. The object of the sub-judice rule is to prevent courts from entertaining parallel proceedings where the same issues involving the same parties are directly and substantially in issue in a previously filed case. In the case of Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex Parte Law Society of Kenya [2020] eKLR, the court emphasized that:“ For the doctrine of sub judice to apply, the court must be satisfied that there exists a previously instituted suit in which the matter in issue is directly and substantially in issue and that the parties in the previous and current suit are the same or litigating under the same title.” 42. Similarly, in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission (Interested Party) [2020] eKLR, the Court underscored that the rule is only triggered when the same parties are litigating over the same issues and subject matter. 43. The Respondent annexed a Notice of Motion application dated 24th April 2023, filed in Thika ELC Petition No. E005 of 2023, and on its face, it shows that the ELC Petition was filed by eight other Petitioners, none of whom is the current Petitioner. Furthermore, the Respondents have not demonstrated that the Petitioner herein could properly claim through, or is litigating under the same title as, the eight Petitioners in the ELC case. 44. Moreover, it is evident from the annexed pleadings that the Thika ELC Petition primarily concerns the conferment of municipal status upon certain areas, especially Juja Municipality while in contrast, the instant Petition focuses on the constitutional and procedural legality of the nomination, vetting, and appointment of Municipal Board Members. The Petition challenges the failure to adhere to constitutional requirements of public participation, inclusivity, and gender parity. These are distinct legal and constitutional questions that do not depend on the determination of the conferment of municipality status pending in Thika ELC and can be independently adjudicated. 45. Even assuming that some factual background may overlap, the legal issues and reliefs sought in the two petitions differ substantially. The subject matter of the ELC Petition relates to the lawfulness https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 8

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of municipal status being conferred on certain localities, whereas the current Petition interrogates whether the subsequent appointment process for the Municipal Board Members was compliant with constitutional and statutory obligations. Therefore, the mere existence of some overlapping issues is not sufficient to trigger the application of the sub-judice doctrine. 46. The correct test is whether the matter in issue is directly and substantially the same in both cases. In this instance, it has not been demonstrated that the outcome of the Thika ELC Petition would directly or substantially resolve the issues raised in the current Petition. Furthermore, it has not been shown that the parties involved are the same or are sufficiently related for the purposes of Section 6 of the Civil Procedure Act. Accordingly, this Court find’s that the doctrine of sub judice does not apply to the present Petition, and proceeds to reject this line of objection. Whether the nomination, vetting and appointment of Municipal Board Members was done in compliance with the Constitution, the Urban Areas and Cities Act No. 13 of 2011, and the Public Appointments (County Assembly Approval) Act No. 5 of 2017. 47. A central issue raised in this Petition is whether the process of nominating vetting, and appointing Municipal Board Members in Kiambu County complied with the constitutional imperative of public participation as enshrined in Articles 10, 174(c), 196(1)(b), and 232(1)(d) of the Constitution of Kenya, 2010, and the applicable statutory framework under the Urban Areas and Cities Act No. 13 of 2011, the County Governments Act No. 17 of 2012, and the Public Appointments (County Assembly Approval) Act No. 5 of 2017. To begin with, the Petitioner alleges that the Respondents failed to adequately involve the public in the appointment process and therefore, the process violated the constitutional requirement of public participation. Specifically, the Petitioner invokes the national values and principles of governance under Article 10, the principle of devolved governance under Article 174(c), the County Assembly’s obligation to facilitate public involvement under Article 196(1) (b), and the public service principle of accountability under Article 232(1)(d), as well as Section 87(a) of the County Governments Act, 2012. 48. On their part, the Respondents maintain that the process complied fully with all applicable legal standards for public participation. They assert that the process was public, transparent, and inclusive, and that members of the public were duly notified and given an opportunity to participate at the vetting stage. 49. Time and again, the courts have pointed out that the constitutional requirement of public participation is a central pillar of Kenya’s democratic governance structure. Article 10(2)(a) lists public participation as a national value and principle of governance binding all state organs, state officers, public officers, and all persons whenever any law is being applied or public policy formulated or implemented. 50. Article 174(c) of the Constitution establishes one of the objects of devolution as giving powers of selfgovernance to the people and enhancing their participation in the exercise of the powers of the State and in making decisions affecting them. Further, Article 196(1)(b) requires County Assemblies to facilitate public participation and involvement in the legislative and other business of the assembly and its committees. Article 232(1)(d) also obligates public service to be responsive, prompt, effective, impartial, and equitable, and to involve the public in policy-making. Section 87(a) of the County Governments Act on the other hand underscores that citizens shall have the right to participate in the activities of the county government, particularly in policy formulation and service delivery. 51. Although there is currently no single statute that prescribes a uniform method of conducting public participation, courts have developed jurisprudence requiring that the process must be reasonable, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 9

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meaningful, and effective. In a more persuasive case of Doctors for Life International v Speaker of the National Assembly & Others (CCT 12/05) [2006] ZACC 11, the South African Constitutional Court held that public participation must not be an exercise in mere formality but must offer the public a real opportunity to express their views and influence decisions. 52. Coming closer home, in the case of Robert N. Gakuru & Others v Governor, Kiambu County & 3 Others [2014] eKLR, the High Court held that public participation is not a mere formality; it must be genuine and must accord the public sufficient information and opportunity to participate meaningfully in decision-making. 53. In considering whether this threshold was met, the Respondents presented evidence demonstrating the steps taken to allegedly ensure meaningful public participation during the nomination and vetting of Municipal Board Members as follows. 54. First, the 2nd Respondent, the Governor of Kiambu County, forwarded the names of seventy-four (74) nominees for consideration to the County Assembly via a letter dated 13th December, 2023. Each nominee’s curriculum vitae was annexed to the letter, enabling scrutiny by the Assembly and the public. Upon receipt of the list of nominees, the 1st Respondent, the County Assembly of Kiambu, issued a public notice dated 29th March, 2024. This notice informed the public that the vetting of nominees by the Sectoral Committee on Planning and Urbanization would be held on 5th , 8th , and 9th April, 2024 at the County Assembly buildings. 55. The notice further indicated that members of the public could access the list of nominees, their qualifications, and the vetting schedule via the County Assembly's official website. It also expressly invited members of the public to submit written memoranda or objections under oath regarding any nominee. 56. The vetting process was conducted in a public forum, and all proceedings were open to public scrutiny. There was no evidence of exclusion or secrecy and hence this Court is persuaded that any member of the public who wished to participate, either by observing or submitting objections, had the opportunity to do so. 57. The Respondents also correctly submitted that, although there is no statutory formula for public participation, courts have consistently held that what is required is that public bodies must act reasonably to afford members of the public a real opportunity to participate. In this case, the court in the case of Kenya Human Rights Commission v Attorney General & Another [2018] eKLR, emphasized that public participation must be “clear, reasonable and meaningful,” taking into account the circumstances of each case. 58. It is notable that in the present case, the County Assembly relied on digital platforms and gazzette advertisement to reach a wide audience, and no complaint about accessibility of those platforms has been tabled before this court. The Court is therefore persuaded that this multi-platform approach met the threshold for innovative and practical participation as contemplated in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 5 Others [2017] eKLR, where the Court stated that public participation need not be a rigid, formulaic process, but must reflect openness and inclusivity, tailored to context. 59. In view of the foregoing, upon a careful examination of the legal framework, the evidence adduced, and judicial interpretation of the requirements of public participation, this Court is satisfied that the Respondents complied with the constitutional and statutory obligation to facilitate public participation in the nomination, vetting, and appointment of Municipal Board Members. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 10

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60. The process was transparent, accessible, and inclusive, and the public was accorded a fair and meaningful opportunity to be heard. There is no evidence that any citizen was prevented or hindered from participating in the process. On the contrary, the measures taken, including advertisement in local dailies, online publication, and public hearings, were adequate and in line with the evolving jurisprudence on public participation. 61. Accordingly, the allegation that the process violated the Constitution or the applicable statutes on grounds of inadequate public participation is without merit. 62. The Petitioner further argued that the composition of the Municipal Board, specifically the seventyfour (74) nominees was unconstitutional for failing to comply with the constitutional requirements of gender equity and the inclusion of persons with disabilities and other marginalized groups, as mandated underthe Constitution and the Urban Areas and Cities Act, 2011. 63. The Petitioner contends that the composition of the Municipal Board is unconstitutional, having failed to adhere to the principles set out in Articles 27(8), 54(2), and 175(c) of the Constitution, as well as Section 14(4) of the Urban Areas and Cities Act, No. 13 of 2011. He avers that the final list of nominees does not satisfy the two-thirds gender principle and, moreover, excludes persons living with disabilities. In his view, the absence of these constitutionally mandated representations renders the entire appointment process legally infirm. 64. In response, the Respondent has submitted that the appointment process was guided by the criteria laid out under Section 14 of the Urban Areas and Cities Act. They argue that for a person to be nominated to the Municipal Board, they must have first applied for the position and satisfied the requisite qualifications. Specifically, the Act prescribes academic thresholds: for instance, a nominee for the position of Chairperson must hold a degree from a recognized institution, while nominees for membership must possess at least a Diploma. 65. The Respondents assert that compliance with the gender and disability inclusion requirements must be assessed against the pool of qualified applicants. They argue that there was no evidence presented by the Petitioner to demonstrate that qualified women or persons with disabilities applied but were excluded during the vetting or nomination stages. In their view, the appointing authority cannot be faulted for failing to appoint individuals who did not express interest or submit applications. Moreover, the Respondents invoke the principle of progressive realization, by submitting that while constitutional ideals of inclusion are important, they must be implemented gradually and pragmatically, particularly where appointments depend on competitive applications and merit-based qualifications. 66. The core issue for determination is whether the Respondents, in nominating members to the Municipal Board, discharged their constitutional obligation to ensure gender equity and inclusion of persons with disabilities and marginalized groups under Articles 27(8), 54(2), and 175(c) of the Constitution, in light of the qualification-based criteria set under Section 14 of the Urban Areas and Cities Act. 67. Article 27(8) of the Constitution requires the State to take legislative and other measures to ensure that not more than two-thirds of the members of all appointive and elective bodies are of the same gender. Article 175(c) further requires County Governments to promote the objects of devolution, including inclusivity. Article 54(2) mandates that at least 5% of the members of public bodies be persons with disabilities. 68. However, this Court agrees with the Respondents’ submissions that the realization of these principles must be contextualized within the operational framework of merit-based appointments. Where https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 11

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eligibility for nomination is dependent on meeting specified academic and professional criteria, as in the context of this case is clearly outlined in Section 14 of the Urban Areas and Cities Act, the obligation to ensure gender and disability representation cannot be fulfilled in a vacuum. It is impossible to enforce these constitutional requirements where no evidence is provided to show that qualified persons from the underrepresented groups applied for consideration but were unjustly excluded. 69. The Petitioner bears the burden of proof to establish that eligible women or persons with disabilities applied but were side-lined during the nomination process. No such evidence has been adduced. To impose liability on the Respondents without proof of discrimination or neglect would amount to setting an impossible standard, one that compels public bodies to appoint individuals irrespective of whether they applied or met the qualifications. This would end up undermining the merit-based framework embedded in the Urban Areas and Cities Act and create a legal obligation unsupported by either statute or precedent. 70. Therefore, while the right to equality and inclusion is constitutional, its actualization, particularly where academic or professional qualifications are set, must be understood as a progressive obligation. The doctrine of progressive realization, as recognized under Article 21(2) of the Constitution and judicially endorsed such as was done in the case of Council of Governors -vs- Senate & Another [2017] eKLR, which acknowledged that some rights may take time to fully implement, especially where resources or eligibility constraints exist. 71. This principle applies with even greater force in contexts whereby the Respondents have no control over the pool of applicants and where compliance is inherently dependent on external variables such as individual qualifications, or the willingness of members of underrepresented groups to participate in the process. Consequently, in the absence of qualified Applicants from the target groups, the Court cannot infer non-compliance merely from the outcome of the process. The Respondents are not under a constitutional duty to manufacture diversity where it does not exist among the Applicants. So long as they administered the process fairly, transparently and remained open to receiving applications from all eligible persons, including women and persons with disabilities, they cannot be found to have acted in breach of constitutional mandates. 72. On the basis of the material presented, the Court finds no sufficient basis to declare the composition of the Municipal Board unconstitutional for non-compliance with the two-thirds gender rule or the inclusion of persons with disabilities. The applicable qualifications under Section 14 of the Urban Areas and Cities Act were clear and binding, and no evidence has been led to show that the Respondents ignored any qualified applicants from marginalized groups. 73. Accordingly, this Court finds that the constitutional obligations under Articles 27(8), 54(2), and 175(c) are to be progressively realized within the constraints of merit-based appointments. Without evidence that eligible candidates from the concerned categories were excluded, the Respondents cannot be faulted hence the Petitioner's claim therefore lacks merit on this ground. 74. Having found that the process of nomination, vetting, and appointment of the Municipal Board members was not constitutionally or procedurally flawed as alleged, this Court is satisfied that the Petition lacks merit and the prayers sought therein are therefore not sustainable in law and evidence. Accordingly, the Petition is hereby dismissed for want of merit. Each party shall bear their own costs. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 11TH DAY OF APRIL, 2025. D. O. CHEPKWONY https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 12

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13988/eng@2025-04-11 13

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