Meru County Government v Ethics & Anti-Corruption Commission (Civil Appeal 193 of 2014) [2018] KECA 720 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that county governments cannot use the Bill of Rights to sue other State organs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant is a person possessed of and capable of enforcing human rights and fundamental freedoms.
- 2.Whether the Commission is obligated to issue written notice prior to undertaking searches.
- 3.Whether enforcement of search warrants undermines the appellant as a County Government.
Key legal issues
#Whether a county government is a 'person' capable of claiming and enforcing fundamental rights and freedoms under Article 22 of the Constitution.
No. A county government, as a State organ, is not a person capable of enforcing Bill of Rights in respect of itself; such rights are essentially human rights claimable by natural persons, and a petition framed on that basis is incompetent.
The Court read Article 260's definition of 'person' contextually: in the Bill of Rights context, rights are anthropomorphic and rooted in natural law theories of human attributes. Article 19(3) declares the rights belong to each individual, not granted by the State. It distinguished the Kisumu County Assembly case, agreeing that State organs may sue to protect constitutional competencies but not to claim Bill of Rights protections for themselves. Had the appellant's officers been joined as co-petitioners, the petition would have been competent.
Whether the Commission was obligated to issue written notice before searching, and whether the search warrant procedure was unconstitutional.
The Court declined to determine this issue as it was rendered academic by the negative answer on capacity, and the question is not a constitutional or Bill of Rights one.
Since the second and third issues could only be answered with utility if the first issue were answered affirmatively, a negative answer rendered them academic. The procedural aspects of search warrants and detention of seized goods are matters for the statute itself, with remedies found in the Criminal Procedure Code, and must await an appropriately live and ripe case brought by a rights-holder.
Legal principles established
#- A county government, as a State organ, cannot petition under Article 22 to claim or enforce the Bill of Rights in respect of itself against another State organ; such rights belong only to natural persons.
- A State organ may nonetheless sue another State organ to protect capabilities, competencies and privileges accorded to it by the Constitution, though not to enforce Bill of Rights guarantees.
- The definition of 'person' in Article 260 of the Constitution is contextual and does not extend to confer Bill of Rights standing on State organs.
- Where a litigant lacks capacity to sue, the court need not determine ancillary or subsidiary issues raised in the petition.
Court orders
#- 1.The appeal is dismissed.
- 2.Each party to bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's dismissal of a constitutional petition (Article 164 of the Constitution; appeal by right against the decision below)
Relief refused
#All declarations and orders sought in the petition as amended (including return of documents, injunction, prohibition, certiorari and mandamus)
The appellant, being a county government and State organ, has no capacity to claim and enforce Bill of Rights in respect of itself, rendering the petition incompetent and the appeal meritless.
Costs
Each party do bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that this appeal is devoid of merit and we accordingly dismiss it. Given the nature of the dispute in that it touched on the Bill of Rights and the public interest, we order that each party do bear own costs.
What they cannot in and of themselves do, is to purport to claim for themselves and enforce for themselves qua State organs, the rights enumerated in the Bill of Rights.
There would thus be an absurdity for a county government to purport to directly claim or seek to enforce for itself the rights and freedoms listed therein.
This finding is on all fours with the pronouncement of this Court in the CHOLMONDLEY (supra) case which we have referred to earlier in this judgment and with which we are in full concurrence
Issues in the judgment
#The Court's name for the anti-corruption statute varies within the judgment ('Ethics and Anti-Corruption Act', 'Anti-Corruption and Securicor Crimes Act', 'ACECA'), creating ambiguity as to the statute intended.
The Court refers to the County Government Act as 'the Country Government Act' and to the Criminal Procedure Code as 'the Criminal Procedure Act' in the summary of the learned Judge's findings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Meru County Government v Ethics & Anti-Corruption Commission (Civil Appeal 193 of 2014) [2018] KECA 720 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/720/eng@2018-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.