High Court 11581 of 2026

DERECTOR OF PUBLIC PROSECUTIONS……5TH INTERESTED PARTY JUDGEMENT 1. Before this Court is the Amended Petition dated 18th November 2024 by which the Petitioners FRANCIS KIRIA and OKOTH OWINO seek the following:“1. AN ORDER OF DECLARATION declaring that the Respondent’s actions are in violation of the constitution and other legislation. 2. AN ORDER [OF] MANDAMUS, directed to the Tana Water Works Development Agency Board to declare the position of the Chief Executive Officer vacant and to conduct fresh interviews and appointment of the Chief Executive Officer. 3. AN ORDER OF MANDAMUS compelling the Interested Party to criminally investigate and, if culpable, instruct the Director of Public Prosecutions HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 (D.P.P) JUDGEMENT to criminally Page 2 of 37

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prosecute the Respondent for his flagrant breach of the law. 4. AN ORDER OF DECLARATION be issued that the Respondent is unfit to hold any other public office because he has grossly violated the Constitution and other laws, and is guilty of gross misconduct. 5. That the Honoruable Court be pleased to issue and hereby issues permanent order of Prohibition prohibiting the Respondent from holding his office any further. 6. That the Honoruable Court be pleased to exercise its powers under article 23(3) of the Constitution, to issue any other appropriate relied. 7. An order that the Respondent do pay the costs of this Petition.” 2. The petition was premised upon Articles 2(1), 3(1), 10(2) (b), 27(1) and (2) 41 (1), 73, 226(5) 258 and 259 (1) of HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 3 of 37

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the Constitution of Kenya 2010 and was supported by the Amended supporting affidavit of even date. 3. The 1st Respondent ENG PHILLIP GICHUKI opposed the petition through his Replying Affidavit dated 14th July 2025. The matter was canvassed by way of written submissions. The 1st Petitioner did not file any written submissions, the 2 nd Petitioner filed the written submissions dated 15th September 2025 whilst the Respondent and the 1st Interested Party TANA WATER WORKS DEVELOPMENT AGENCY (TWWDA) relied on this joint written submissions dated 15th December 2025. BACKGROUND 4. The Petitioners are both Human Rights Activist based in Nairobi under the name MWANGAZA GRASSROOT NA HAKI. The Respondent who is an Engineer by profession is the current CEO and Board Secretary of TWWDA (the 1st Interested Party). 5. The fact as set out by the Petitioner in their Statement of facts in HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 4 of 37

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the Amended Petition dated 18th November 2024 were as follows:“1. That the petitioner noted overwhelming illegalities, irregularities and circumvention of the law that was done by the Respondent at the Tana Water Works Development Agency (TWWDA). 2. The petitioner averred that there was illegal and unlawful misuse of tax-payers money a fact confirmed by the Auditor general’s report. The petitioner stated that the Auditor General’s report on Undisclosed Uncertainty Relating to Sustainability of Services noted that the statement of financial performance for the year ended 30 June, 2020 reflected a deficit of Kshs. 436,302,724 compared to a deficit of Kshs. 332,775,084 reported as at 30th June, 2019. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 The accumulated deficit JUDGEMENT Page 5 of 37

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increased from Kshs. 1,634,401,448 as at 30 June, 2019 to Kshs. 2,070,704,172 as at 30 June, 2020. 3. Further, the report noted that the current liabilities of Kshs. 5/3,175,582 exceeded the current assets of Kshs.505,229,936 resulting in a negative 7,945,646. working capital of Kshs. However, this fact has never been disclosed by the Respondent by way of Notes to the financial statements as required under IPSAS 1 on presentation of financial statements. not Further, the Respondent did demonstrate any tangible measures being undertaken to reverse the negative trend which casts doubt on the Agency’s ability to sustain services in the foreseeable future. 4. As regards Unreconciled Development Grants, the statement of financial position reflected a balance of Kshs. 7,290,059,524 HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 6 of 37

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under capital reserve which amounting included development grants to Kshs. 823,227,097. However, confirmation from the parent Ministry indicated that a total of kshs. 1,113,544,262 was disbursed to the Agency as development grants leading to a resultant variance of Kshs. 2,903,765 which was not reconciled or explained by the Respondent and as such the accuracy of capital reserve balance of Kshs. 7,290,059,524 as at 30th June, 2020 could not be confirmed. 5. On Debtors, Prepayments and Receivables as previously financial reported, position the statement of reflected debtors and prepayments balance of Kshs. 340,896,132; (20/9-Kshs,253,021,373). As disclosed in the financial statements, included in the balance are long outstanding debts owed to the Agency by the HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 Ministry of JUDGEMENT Water and Page 7 of 37

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Sanitation and the District Water Offices of Kshs. 19,896,517 respectively. and The Kshs. debts 1,672,245 have been outstanding since November, 2012 casting doubt on their recoverability. Respondent Ministry had of sent Water Although the reminders and to the Sanitation to reimburse the money, there was no evidence of further recoveries. action or follow Therefore, the up on the debtors and prepayments balance of Kshs. 340,896,132 also included trade debtors amounting to Kshs. 229,891,154 which had been outstanding for periods exceeding three (3) years. taken There was no evidence of efforts by the Respondent towards their recovery by way of demand letters or legal action taken against the defaulters. 6. Further, an aging analysis of the trade debtors was not provided for audit review. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 8 of 37

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Under the circumstances, the recoverability, validity and fair statement of the debtors, prepayments and receivables balance of Kshs. 340,896,132 as at 30 June, 2020 could not be confirmed. 7. On Assets Without Ownership Documents, the statement of financial position reflected a balance property, of Kshs. plant 5,511,557,996 and equipment under which included an amount of Kshs. 5,675,000 in respect of land. Included in the land balance were three (3) parcels of land valued at kshs. 5,250,000, Kshs. 210,000 and Kshs. 80,000 for which title deeds provided for audit verification. were not Further, three (3) motor vehicles of undetermined value transferred to the Agency by the Yatta Canal Rehabilitation Project had logbooks which were yet to be registered in the name of the Agency. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 9 of 37

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8. Under the circumstances, the accuracy, fair statement and ownership of the property, plant and equipment balance of Kshs. 5,511,557,996 as at 30 June, 2020 could not be confirmed. In respect to Budgetary Control and Performance, the statement of comparison of budget and actual amounts reflected a final revenue budget and actual revenue on 463,000,000 comparable and basis Kshs. of Kshs. 290,859,519 respectively resulting to a shortfall of Kshs. 172,140,481 or 37% of the budget. Similarly, the Respondent had an approved expenditure budget of Kshs. 663,935,000 against an actual expenditure of Kshs. 727,162,243, resulting to an overall over expenditure of Kshs. 63,227,243 or 9%. 9. The Report on lawfulness and effectiveness in use of public resources noted Non- Repayment of African Development Bank HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 10 of 37

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Loan As disclosed in Note 16 to the financial statements, the statement of financial position reflected a loan balance amount of Kshs. 5,379,085,792 (2019 - Kshs. 5,149,753,042) being loan amount due to the African Development Bank (DB). In an agreement between the Government and the African Development Bank dated 5 April, 2010, the Agency received an on-lent loan amounting to USD 53,913,490 (Kshs. 5,149,753,042) from the Bank where the Agency was to pay the principal amount in 52 consecutive semi-annual instalments commencing 30 April, 2016. 10. The Agency through the stewardship of the Respondent was to pay interest on the principal amount at the rate of 3% per annum for a period of 30 years with a provision to accrue any unpaid principal or interest amounts. However, the Agency had HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 11 of 37

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not commenced repaying the loan as at 30 June, 2020 and was in default. Under the circumstances, the Agency is in breach of the terms of the loan agreement. The Respondent has also been Non-Compliant with the Review of Approved the Staff human Establishment resource records revealed that the Agency had an approved staff establishment of seventy two (72) staff at various cadres while the actual staff count at the time of audit was forty two (42) leaving a employees. shortfall of thirty two (32) Further, the approved staff establishment reflected zero post for supply chain management officer and one (1) post for the accountant compared to the actual staff in the positions of three (3) and two (2), respectively. The two Departments were, therefore, over established contrary to the provisions of HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 Section JUDGEMENT 2.1.5 of the Page 12 of 37

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Agency’s Human Resource Policy and Procedures Manual which states that all appointments approved establishment. Under the circumstances, the Respondent was in breach of the Human Resource Policies and Procedures. 11. The Respondent has also been Non- Compliant with the One Third of Basic Salary Rule. During the year ended 30 June, 2020, nine (9) employees earned a net salary of less than a third (1/3) of the basic salary. This was contrary to Section 19(3) of the Employment Act, 2007 which requires that deductions made by an employer from the wages of his employee at any one time shall not exceed two thirds of such wages. Consequently, the Agency was in breach of law. As regards Creditors, Accruals and Payables As disclosed in Note 15 to the financial statements, HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 the JUDGEMENT statement of Page 13 of 37

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financial position reflected a balance of Kshs. 513,175,582 in respect of creditors, Accruals and Payables As disclosed in Note 15 to the financial statements, the statements of financial position reflected a balance of Kshs. 513,175,582 in respect of creditors, accruals and payables where it was observed that there was Unremitted Withholding Taxes The creditors, accruals and payables balance of Kshs. 513,175,592 includes an amount of Kshs. 10,757,746 relating to withholding tax due to the Kenya Revenue Authority the Respondent thereby exposing the Interested Party to the risk of incurring additional tax penalties and interest with the continued non-remittance of taxes. 12. The Respondent also used Retention Money for other purposes Included in the creditors, accruals and payables HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 also JUDGEMENT used and Page 14 of 37

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payables balance of Kshs. 5/3,175,582 is also an amount of Kshs. 144,610,532 being 10% retention money deducted from contractors’ payments. bank However, account the maintained corresponding at the Kenya Commercial Bank Limited-Kitui Branch for contractor’s retention reflected a balance of Kshs. 21,183,439 resulting into an unexplained variance of kshs. 123,427,093. The Respondent did not explain how he withheld monies to guard against shoddy workmanship by the contractor during the defect liability period were applied. 13. The Respondent in hiring of employees in [sic] guilty of lack of Regional Staff Balance where, a review of the staff ethnic composition at the Agency revealed that the dominant community accounted for 68.8% of the total employed staff. Consequently, the Respondent was in breach of Section 7(1)(2) HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 15 of 37

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of the National Cohesion and Integration Act, which stipulates that no public establishment shall have more than one third of its staff from the same ethnic community. 14. In matters attendant to Work-in-Progress, the statement of financial position reflected a balance of kshs. 5,145,309,996 under work in progress as at 30 June, 2020. Included in the balance was an amount of Kshs. 21,328,780 on account of Kimbere-Mwingi Water Supply and Sanitation Project, which had no movement since 30 June, 2019 an indication that the project has stalled. Further, no explanation was provided by the Respondent for his failure to complete the project. Consequently, the delayed completion of the water project has denied water to the targeted communities. The preceding report by the Auditor General, it HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 16 of 37

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was noted that there was Assets without Ownership documents where the statement of financial position reflected Property, Plant and Equipment (PPE) balance of kshs. 5,615,457,147 and as disclosed under note 12(a) to the financial statements. Included in this balance are the following assets whose ownership could not be confirmed; i. Three (3) parcels of land at Mavoko Municipality, Wiikinye and Matinyani/ Kalia valued at Kshs. 5,250,000, Kshs. 210, 000 and Kshs. 80,000 respectively. ii. Three motor vehicles of undetermined value transferred to the Agency from Yatta Canal rehabilitating project which have not been registered in the name of the Agency. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 17 of 37

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iii. Audit verification of the work in progress at Migwani Water Supply Project revealed that the land on which the borehole, pump house, re-enforced concrete wall tank and the machine operator house were constructed on had no ownership documents. iv. Included in the work in progress is an amount of Kshs. 21,323,780 in respect of Kiambere Mwingi Water Supply Project. Audit verification revealed that the land on which the water treatment plant was to be constructed had no ownership documents. In the circumstances, the accuracy and ownership of the property, Plant and Equipment balance of kshs. 5,615,457,147 AS HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 18 of 37

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AT 30 June 2019 could not be confirmed. 15. On Development Expense, the statement of financial performance reflected development expense of kshs. 97,525,866; (2018 – Kshs. 209,689,292) and as disclosed under Note II to the financial statements. Included in this expenditure was an amount of Kshs. 43,077,218 on account of drought mitigation out of which an amount of kshs. 19,841,588 was in respect of drought mitigation to eight (8) service providers for the drilling, equipping, casing and test pumping of eight (8) boreholes. 16. However, supporting documents including approved requisition departments committee and were from minutes not of provided the user evaluation for audit review. In the circumstances, the validity of the development HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 expense JUDGEMENT amounting to Page 19 of 37

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Kshs. 97,525,866 for the year ended 30 June, 2019 could not be confirmed. 17. The Petitioner avers that there is need to proceed and bar the Respondent from occupying office any further due to his flouting and gross violation of the law. 6. Based on the above the Petitioner’s contended that the Respondent failed to adhere to the third rule on Basic Salary during the period 2021/2022 and thereby breached Section C 1(3) of the Public Service Commission Human Resource Policies 2016 as well as Section 19(3) of the Employment Act, 2007. 7. That the Respondent unlawfully disregarded advice and recommendations of the Public Service Commission (PSC) thereby violating Articles 232(e) and f of the constitution which requires state organs to be accountable for administrative acts and to ensure transparency as well as the provision of timely accurate information. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 20 of 37

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8. That the Respondent has disregarded the whole of Chapter six of the constitution which demands that state and public officers to uphold integrity. 9. The Petitioners assert that in light of the alleged violations by the Respondent the only remedy would be his removal from public office. They describe the Respondent as a public servant who mistakes himself for a monarch! They seek to have the Respondent removed from office for among other transgressions, gross violation of the constitution and statute law, commission of crimes, abuse of office and gross misconduct. 10. The Respondent and the 1st interested party vehemently opposed the petition. In his replying affidavit the Respondent averred that the petitioners have filed several such petitions against him including Petition No. E015 of 2024 which was filed by the 1 st Petitioner in the High Court in Nairobi. The said petition was later withdrawn. 11. The Respondent states that the prayers now being sought by the Petitioners are not only unwarranted and misplaced but HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 21 of 37

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also constitute an abuse of court process. That the petitioners have failed to demonstrate that they have exhausted all constitutional and statutory mechanisms for addressing the issues they have raised. 12. That the Petition is premature as the petitioners have not demonstrated that the Audit Report they seek to rely on was submitted to Parliament or that Parliament has debated the said audit report as required under Articles 229 (7) and (8) of the Constitution. That aside from merely reproducing the findings of the Auditor General in the petition, no nexus has been drawn between the Respondent and the alleged breaches neither has it been demonstrated that the Respondent was directly responsible for said breaches. 13. The Respondent states that the petitioners failed to exhaust all available mechanisms as they failed to invoke the powers of the Auditor- General under Section 9(1) of the Public Order Act, to conduct investigations on the basis of a complaint by a third party. Neither did the petitioners move to report any alleged illegal and/or criminal acts to the police for investigation. That where an alternative dispute HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 22 of 37

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resolution mechanism exists the same should be employed and courts ought to be the last resort and not the first port of call for such complaints. 14. That there is no audience that the Respondent has been called upon to respond to any of the issues raised in the report by either the Auditor General or by parliament offending the requirements of Fair Administrative action under Section 4(3) of the Fair Administrative Action Act 2015, which guarantees the right to be heard before any adverse action is taken. 15. The Respondents submit that he who alleges must prove. They state that the petitioners have failed to prove the alleged constitutional violations on a balance of probability. That the petition is heavy on allegations and short on proof. The court cannot be expected to go searching for the evidence to prove the petitioners allegations. 16. The Respondent asserts that he is not to his knowledge under investigation by the DCI or the Ethics and AntiCorruption Commission or HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 indeed JUDGEMENT by any other Page 23 of 37

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investigative agency in Kenya. As such the inclusion of the two bodies in this petition is speculative at best. No report recommending investigations against the Respondent has been produced in court. 17. The Respondent states that the prayer seeking his removal from office is totally unfounded as he has not been accorded an opportunity to be heard by any impartial tribunal or body. The Respondent finally urges this court to dismiss the Amended Petition in its entirety and award them costs. ANALYSIS AND DETERMINATION 18. I have carefully considered the Petition before this court, the reply filed thereto, as well as the written submissions filed by both parties. The three questions which emerge for determination are;(i) Has the Petition met the threshold for a constitutional petition. (ii) Were the Petitioner’s rights infringed. (iii) Is the Petitioner entitled to damages. (i) Threshold for a Constitutional Petition HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 24 of 37

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19. The threshold for a constitutional petition were set out in the case of ANARITA NJERU -VS- REPUBLIC [1997] KLR, where the Court held that:“We would however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed…..” 20. Similarly in COMMUNICATIONS COMMISSION OF KENYA & OTHERS -VS- ROYAL MEDIA SERVICES LIMITED & 5 OTHERS [2014] eKLR the Court stated that “Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 25 of 37

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rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic, (1979) KLR 154: The necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 21. The court while considering the elements of a sustainable Constitutional Petition in Grays Jepkemoi Kiplagat v Zakayo Chepkonga Cheruiyot [2021] eKLR stated that:“It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. reasonable degree of It must with some precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 26 of 37

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the manner of the violation and/or threatened violation. I do not suppose it is enough to merely cite constitutional provisions. There has to be some particulars of the alleged infringements to enable the respondents to be able to respond to and/or answer to the allegations or complainants….. Although I have in my foregoing discussion adverted to grounds (c) and (d) of the preliminary objection that there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters Constitutional and christening the same as Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil Courts, a party ought to invoke the jurisdiction of the Constitutional Court.” [Own emphasis] HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 27 of 37

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22. Rule 4(1) of the Constitution of Kenya (Protection of Rights 2013 and Fundamental Freedoms Practice and Procedure Rules (the Mutunga Rules) provides as follows:“Where any right or fundamental freedom provided for in the constitution is allegedly denied, violated, or infringed, or threatened a person so affected or likely to be affected, may make an application to the High Court in accordance to these rules.” 23. Rule 10 of the “Mutunga Rules” governs the form that a constitutional petition should take Rule 10(2) of the said Rules specifically provides as follows: “(2) The petitioner shall disclose the following a) The petitioner’s name and address; b) The facts relied upon; c) The constitutional provision violated; d) The nature of injury caused or likely to be caused to HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 the petitioner JUDGEMENT or the Page 28 of 37

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person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community; e) Details regarding any civil or criminal case, involving the petitioner or any of the petitioner, which is related to the matters in issue in the petition; f) The petition shall be signed by the petitioner or the advocate of 24. g) The petitioner; and h) The relief sought by the petitioner.” Guided by the above Rules I find that the Petitioner’s name and full address have been supplied as required. The Amended petition clearly set out a factual background and the alleged contraventions of the constitution were enumerated in the Amended petition. The Amended petition was duly signed by the 1st Petitioner and the reliefs being sought were clearly HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 29 of 37

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set out. I am therefore satisfied that the Amended Petition as presented does meet the threshold required for a constitutional petition. 25. The Petitioners have set out a litany of complaints against the Respondent. There is no evidence to show nor has it been suggested that the petitioners made any effort at all to seek resolution of the issues they have raised through other statutory set out mechanisms e.g. complaints to the office of the AuditorGeneral. 26. More pertinently despite the petitioners having made allegations to suggest criminal behavior or corrupt practices on the part of the Respondent they apparently made no effort to report these alleged malfeasance to either the Directorate of Criminal Investigations who are mandated to investigate crime or to the Ethics and AntiCorruption commission who are mandated to investigate corruption related offences. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 30 of 37

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27. The doctrine of exhaustion requires that parties first explore out of court resolution. The petitioners did not do this – they simply made a beeline to court with this petition. 28. It is trite law that he who alleges must prove. It is a general proposition of the law that the legal burden of proof lies upon the party who invokes the aid of the law. Section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya) provides as follows:“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 29. Sections 109 and 112 of the same Act provide that: “109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 31 of 37

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“112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 30. The two provisions of the law were dealt with in the decision of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005 1EA 334, in which the Court of Appeal held as follows: “As a general proposition under Section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 32 of 37

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31. Similarly in Gatirau Peter Munya vs Dickson Mwenda Kithinji & 3 Others (2014) eKLR the Supreme Court held inter alia: The person who makes such allegations must lead evidence to prove the fact. She or he bears the initial legal burden of proof, which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the other hand, the evidential burden is a shifting one, and is a requisite response to an already discharged initial burden. The evidential burden is the obligation to show if called upon to do so, that there is sufficient evidence to raise an issue as to the existence of a fact in issue.” 32. It is not enough nor does it serve any useful purpose for the petitioners to lay out paragraph after paragraph of alleged ills committed by the Respondents. They must go further and adduce sufficient evidence to prove the alleged violations of the constitution or crimes on a balance of HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 33 of 37

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probability. No attempt was made to prove any of their allegations contained in the petition. 33. The petitioners relied heavily on the Auditor General’s report for the financial year ending 30th June 2020. Indeed they appear to have simply regurgitated the contents of that report. However the said report was not annexed to the petition. It behoved the petitioners to avail to court all relevant material in support of their claims. It is not for the court to go out looking for reports and/or documents which have been referred to by the parties. Moreover the author of that report did not swear any affidavit in this matter. 34. The petitioners also placed reliance on financial statements as proof of the Respondents misappropriation of funds. The said financial statements were not annexed to the petition. 35. The petitioners also cited Budgetary Control and Performance Report on lawfulness and effectiveness in use of public resources and the one-third basic salary rule. No documents/evidence was availed in respect of these documents. HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 34 of 37

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36. The petitioners claimed that he Respondent had hired 40 individuals as against a reported 72. Who were the persons hired. What were their names and when were they hired by the Respondent? Again no proof of this serious allegation was availed to the court. 37. All in all I find this petition consist wholly of unsubstantiated allegations. No evidence by way of documents or affidavits have been annexed to prove any of the claims made. 38. The Public Audit Act Section 9(1) grants to the AuditorGeneral powers to investigate any complaint relating to fraud or to corrupt practices. Likewise regarding the prayer for Water Act 2016 and the State Corporations Act Cap 446 Laws of Kenya vest authority in the relevant agency (IWWDA) for disciplinary action and/or removal of a CEO. There is no indication that the petitioners lodged any complaints with the relevant Board. 39. There is no evidence that the petitioners took any steps to report the alleged violations of the constitution and/or HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 35 of 37

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crimes on the part of the 1st Respondent to any body authorized to investigate such matters. No report was made to the Board of TWWDA seeking removal of CEO. No reports were made to DCI or to EACC. In SPEAKER OF THE NATIONAL ASSEMBLY -VS- KARUME [1992] eKLR the Court stated thus “In our view there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution of an Act or Parliament, that procedure should be strictly followed……” 40. Thus this petition fails for failing to exhaust the constitutional and statutorily mandated mechanisms for addressing such grievances. The petitioners cannot short circuit such mechanisms by filing a constitutional petition. 41. There is a fondness by public spirited individuals and/or bodies to rush to court with various petitions seemingly ignorant of the requirement that any allegation made in such HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 36 of 37

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petitions must proved. This tendency needs to stop as much judicial time is absorbed dealing with such petitions. 42. In conclusion this petition has no merit at all. Given the history as narrated by the Respondent and in view of the fact that the petitioner has previously filed a petition against the Respondent in Nairobi, the claim that this petition is actuated by malice cannot entirely be discounted. I dismiss in its entirety the Amended Petition dated 18th November 2024 and direct that costs will be met by the Petitioners. Dated in Nyeri this 24th day of July 2026. ………………………… MAUREEN A. ODERO JUDGE HIGH COURT CONSTITUTIONAL PETITION NO. E007/2024 JUDGEMENT Page 37 of 37

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