Union of Veterinary Practitioners, Kenya (uvpk) v Hon Attorney General & 4 others

UNION OF VETERINARY PRACTITIONERS, KENYA (UVPK) .. PETITIONER AND HON ATTORNEY GENERAL ..................................................... 1ST RESPONDENT COUNCIL OF GOVERNORS ...................................................... 2ND RESPONDENT CABINET SECRETARY OF THE MINISTRYOF DEVOLUTION AND ASALS .............................................................................................. 3RD RESPONDENT SALARIES & REMUNERATION COMMISSION .................... 4TH RESPONDENT CABINET SECRETARY MINISTRY OFAGRICULTURE, LIVESTOCK & FISHERIES ...................................................................................... 5TH RESPONDENT AND KENYA VETERINARY ASSOCIATION .............................. INTERESTED PARTY JUDGMENT 1. 2. The Petition dated 30th March,2021 seeks the following reliefs: a. A declaration that the failure of County Governments to implement Veterinary Services as part of county public health is a violation of the Fourth Schedule Part Para 2 (e) of the Constitution of Kenya 2010. b. A declaration that the continued refusal to implement veterinary services as part of public health by the 2nd Respondent, the continuing dichotomy in salaries and failure to properly make allocations for veterinary services by the 2nd Respondent in concert with the 3rd, 4th & 5th Respondents is unlawful, null and void ab initio for violating the provisions of Articles 27, 41, 43, 47 and 48 of the Constitution of Kenya 2010 (the Constitution). c. A declaration that the continued refusal to implement veterinary services as part of public health by the 2nd Respondent, the continuing dichotomy in salaries and failure to properly make allocations for veterinary services by the 2nd Respondent in concert with the 3rd, 4th & 5th Respondents is unlawful, null and void ab initio for violating the provisions of Articles 2, 10, 20, 73, 232 and 248 of the Constitution of Kenya 2010. d. An order of Judicial Review in the nature of Mandamus compelling the 2nd Respondent together with the 3rd, 4th & 5th Respondents to implement the provisions of Schedule 4 Part 2 Para 2 (e) by facilitating County Government Veterinary Departments. e. An order of mandamus directing the 4th Respondent to commence and finalize the process of assessing the allowances of Veterinary Professionals as required by Section 11 of the Salaries & Remuneration Commission Act. f. Costs of this Petition be borne jointly and severally by the Respondents. At paragraphs 45 to 50 of the Petition, the Petitioner pleads as follows: “ 45. Further to the above, Schedule 4 PART 2 PARA 2 (E) of the 2010 Constitution categorizes veterinary services as part of County Public Health. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13178/eng@2026-08-24 2

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On the Other Hand, PART 1 of SCHEDULE 4 grants the national government the mandate of coming up with the national Veterinary Policy. However, as it stands, over a decade after the promulgation of the Constitution, County Governments are not implementing veterinary services as required by the Constitution. 3. 46. Contrary to the spirit of the constitution, the Veterinary Public Health Bill, 2019 goes contrary to the express imperatives of the constitution, the Veterinary Policy and the emerging global standard of public health by splitting the approach to public health between public health and veterinary public health. Moreover, it grants the Director of General of Veterinary Services together with the County Director the mandate of regulating Veterinary Services at the County level, import and export licensing, licensing of premises for trade, certification of food and feeds, appointment of national and county directors among other things. 47. Furthermore, the 2019 “World Organization for Animal Health (OIE) “PVS EVALUATION FOLLOW-UP REPORT OF THE VETERINARY SERVICES OF KENYA” recognizes the change in governance structure brought the 2010 Constitution. It also identifies the fact that Veterinary Services were devolved but finds that this devolution is not operational for the following reasons: a. Redeployment of the same officers who served in the county governments to the counties b. Not allowing county governments to operationalize veterinary services at the County level c. A moratorium on appointment which has led to an acute shortage of officials at the County Level. 48. In fact, the report in its key findings on operations concluded as follows: “In all nine of the Counties visited, it was indicated that on average the ratio of personnel costs to operational costs is on average 3:1 indicating that although funds are available to cover the salaries of the currently employed cadre of staff, insufficient funds are available for operational costs. This skewed ratio and lack of operational funding has a direct bearing in performing important operational activities such as surveillance, follow-up on suspect outbreaks and movement control.” 49. Based on the above, among other things, the report recommended additional resources to enhance technical and operational ability (laboratories and equipment) to enhance the ability of the PVS to conduct surveillance and to offer much needed veterinary services at the counties. 50. Despite the above, the 4th Respondent has not originated any process in consultation with the other Respondents to assess and advice on proper remuneration of the members of the Petitioner.” I have only isolated a few paragraphs of the Petition for reasons that upon my perusal of the entire petition and the responses thereto, I note that the Petitioner, in essence is lamenting against the alleged failure to act by the 47 Counties, to ensure that citizens access Veterinary services which are sufficient, and that there are enough Veterinary Officers in the Counties, and who are well remunerated to provide the essential services. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13178/eng@2026-08-24 3

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4. The Petitioner claims that the 2nd Respondent has failed and or refused to implement veterinary services as part of public health yet, a perusal of the functions of the 2nd respondent as established under the IGR Act does not reveal that the 2nd respondents is empowered to perform any of the functions that it is alleged to have failed to perform. 5. In view of the above observation, the question that I must pose, as a preliminary issue, is whether there is misjoinder or nonjoinder of a necessary and appropriate respondent party and whether non-joinder or misjoinder is fatal to the Petition. 6. As I answer this question, I examine the relevant provisions of the law and Rules governing constitutional petitions. Commencing with Rule 5 of the (Mutunga Rules),the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides as follows: 5. The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties— a. Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties. b. A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute. c. Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit d. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just— e. 7. i. order that the name of any party improperly joined, be struck out; and ii. that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents. The above Rule 5 is categorical that a petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every proceeding deal with the matter in dispute. To correct misjoinder or non-joinder, the Court is empowered either on application by a party or on its own motion, to order the striking out of a party improperly joined. The Court may also order the addition of any person who ought to have been joined, or whose participation in the matter before it may be necessary in order to enable the court adjudicate upon and settle the matter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13178/eng@2026-08-24 4

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8. On whether the misjoinder and non-joinder can be fatal to the constitutional Petition, In Shah & 4 others v Commissioner of Investigations and Enforcement (Constitutional Petition E458 of 2022) [2023] KEHC 20180 (KLR) (Constitutional and Human Rights) (30 June 2023) (Judgment) Mugure Thande J faced with a similar situation where there was misjoinder and having found that there was need to join the correct party to the proceedings to enable the Court effectively and effectually determine the Petition, stated as follows, pursuasively: “ 12. The above provision (Rule 5 of the Mutunga Rules) accords with Article 159(2)(d) of the Constitution which requires that justice shall be administered without undue regard to procedural technicalities. There is sufficient judicial authority for the proposition that courts of law are enjoined to sustain suits rather than terminate them on technicalities unless the case appeared hopeless and beyond redemption (see DT Dobie Company (Kenya) Ltd v Joseph Muchina & Another [1980] eKLR. This position is underpinned on the need to administer substantive justice. 13. In the end and in view of the foregoing, I direct that the Petitioners amend the Petition by joining KRA, which is the proper Respondent in this matter and against whom any orders, if granted, can be enforced. I further direct that the amended petition be filed within 21 days. Matter shall be mentioned on October 22, 2023 for compliance.” 9. The above decision applies to this petition persuasively, for the reasons that the Petitioner has sued the Council of Governors while, in essence, the functions of the Council of Governors are totally different from the functions of each of the 47 Counties and the alleged role of the CoG is that of the respective 47 counties. What the Petitioner is lamenting against the Council of Governors is what the Counties are empowered by the Constitution and the relevant statutes to perform. 10. I will therefore state what the functions of the Council of Governors are and how distinct these functions are from the functions of the County Governments, and whether a court can issue an order or issue a directive to the Council of Governors, CoG, to perform executive, or service-delivery functions that are constitutionally or statutorily reserved for distinct County Governments. 11. The Council of Governors (CoG) is established under Section 19 of the Intergovernmental Relations Act. It provides a forum for the 47 county governors to consult, share performance data, resolve intercounty disputes and act as a collective voice on national policy and devolution. 12. The specific statutory functions of the CoG are set out in section 20 of the Intergovernmental Relations Act as follows: 20. Functions of the Council (1) The Council shall provide a forum for— (a) consultation amongst county governments; (b) sharing of information on the performance of the counties in the execution of their functions with the objective of learning and promotion of best practice and where necessary, initiating preventive or corrective action; (c) considering matters of common interest to county governments; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13178/eng@2026-08-24 5

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(d) dispute resolution between counties within the framework provided under this Act; (e) facilitating capacity building for governors; (f) receiving reports and monitoring the implementation of inter-county agreements on inter-county projects; (g) consideration of matters referred to the Council by a member of the public; (h) consideration of reports from other intergovernmental forums on matters affecting national and county interests or relating to the performance of counties; and (i) performing any other function as may be conferred on it by this Act or any other legislation or that it may consider necessary or appropriate. (2) The Council shall have powers to establish other intergovernmental forums including inter-city and municipality forums. (3) The Council may establish sectoral working groups or committees for the better carrying out of its functions. 13. The Constitutional foundation for County Governments is Article 176(1) of the Constitution which establishes County Government for each of the 47 counties, consisting of a County Assembly (legislative arm) and a County Executive (headed by the County Governor). 14. Article 179(4) mandates that the County Governor is the Chief Executive Officer of the county. Executive power is deployed locally to administer functions listed under the Fourth Schedule, Part 2 (e.g., healthcare, agriculture, county transport). 15. On resource accountability, the individual Governor and their County Executive Committee (CEC) hold sole, un-shareable responsibility for managing county public finance allocations under the Public Finance Management Act. 16. The CoG is a consultative, non-executive intergovernmental body, whereas County Governments are autonomous, distinct constitutional entities. Therefore, any order that has the effects of compelling the CoG to perform county-specific obligations or to declare anything as pleaded by the petitioner, is violative of the principles of devolution, the doctrine of separation of powers and the institutional integrity explicitly protected under the Constitution. Such an order would be incapable of enforcement. 17. The Council of Governors being exclusively a consultative, coordinating, and advisory body established under the Intergovernmental Relations Act (IGRA 2012), it does not possess executive, legislative, or administrative authority over any county territory. 18. Therefore, whereas a governor represents their county at the CoG, they cannot delegate or abdicate their county-specific executive powers to the Council. 19. I note that the Petition raises very serious issues that relate to Constitutional and statutory functions of the 47 County Governments. The is no evidence or constitutional basis to imagine that the CoG is responsible for policy implementation or for the acts and omissions of the 47 County Governments, which latter have the capacity to sue and be sued in their own names. 20. There is therefore an obvious misjoinder and non-joinder of parties and the question is what is the effect of such. As stated above, rule 5 of the Mutunga Rules empower this Court to strike off a party https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13178/eng@2026-08-24 6

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that is found to be wrongly joined to the Petition. The Rule also allows this Court to order for joinder of a party whose presence enables the court to effectively and effectually adjudicate over the petition. 21. In this Case, I am persuaded that the 2nd Respondent is improperly joined to this Petition. Invoking Rule 5 of the Mutunga Rules, I hereby strike out the CoG from these proceedings. Having done so, I find that the parties whose presence to these proceedings is necessary are the 47 Counties. Accordingly, I grant leave to the Petitioner to amend the Petition enjoining all the 47 counties as respondents and the amended Petition to be filed and served upon all the parties within 21 days hereof unless such period is extended by the Court. 22. I make no orders as to costs as the issue at hand was raised by the Court suo moto and the main issues in the petition have not been determined. 23. Mention on 5th October, 2026 for further directions. 24. I so order. DATED, SIGNED & DELIVERED VIRTUALLY AT MOMBASA THIS 24TH DAY OF AUGUST, 2026 R.E. ABURILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13178/eng@2026-08-24 7

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