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ELRCStruck OutPetition dated November 9, 2022 (number not stated in judgment)· [2023] KEELRC 514 (KLR)

254Hope v Governor, Vihiga County & Others

High Court of Kenya
23 February 2023
JKJ. W. Keli
2,106 words in judgment
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The bottom line

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Kenya's High Court confirmed anyone can file a public-interest petition, but must first use the specific objection process the law provides before going to court.

What this practically means

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Executive summary

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The Petitioner, 254Hope, an unincorporated organization of professionals promoting good governance, petitioned against the nomination and approval process of County Executive Committee Members for Vihiga County, seeking a permanent injunction restraining further consideration, approval, appointment or assumption of office pursuant to the Governor's nomination list. It particularly objected to the County Assembly's partial approval of nominees and the nomination of a Health CEC nominee allegedly lacking health-sector background. The 1st Respondent filed a notice of preliminary objection raising, among other grounds, lack of locus standi of the unregistered entity, defective affidavits, and failure to exhaust the objection mechanism under section 7(10) of the Public Appointments (County Assemblies) Approvals Act. Ground 3 (defective jurats) was withdrawn. The court, canvassing the objection on written submissions, overruled grounds 1 and 2 on locus standi, holding per Mumo Matemu and Randu Nzai Ruwa that Articles 22, 258 and 260 of the Constitution confer standing on unincorporated associations acting in public interest. However, it upheld ground 4: section 7(10) provides a clear statutory mechanism for any person to contest a nominee's suitability before the approval hearing, and following Speaker of the National Assembly v James Njenga Karume, such a prescribed procedure must be strictly followed. The petition, filed without first objecting before the County Assembly, was premature. The court struck out the petition dated November 9, 2022. As the petition was brought in public interest, each party was ordered to bear its own costs.

Key legal issues

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01

Locus standi of an unincorporated association

Holding

Grounds 1 and 2 of the preliminary objection on locus standi were overruled; the petitioner, though unregistered, qualifies as a 'person' under Article 260 and may petition in public interest

Reasoning

The court applied the Supreme Court's decision in Mumo Matemu and the Court of Appeal's decision in Randu Nzai Ruwa, holding that the 2010 Constitution enlarged standing under Articles 22 and 258 to every person, whether corporate or non-incorporated, subject to the litigant not being a busybody or meddlesome interloper acting in bad faith.

p. 5
02

Exhaustion of alternative redress mechanisms

Holding

The petition was incompetent and premature because the petitioner did not first object to the nominee's suitability before the County Assembly under section 7(10) of the Public Appointments (County Assemblies) Approvals Act

Reasoning

Section 7(10) provides a statutory mechanism for any person to contest, on oath, the suitability of a nominee before the approval hearing. Following Speaker of the National Assembly v James Njenga Karume, where a clear procedure for redress is prescribed it must be strictly followed. The court, respecting separation of powers, would only intervene upon conclusion of the vetting process.

p. 5

Legal principles established

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  • An unincorporated association has locus standi to bring a constitutional petition in public interest under Articles 22 and 258 of the Constitution, 'person' under Article 260 including unincorporated associations
  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed and is not optional

Court orders

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  1. 1.Preliminary objection dated November 15, 2022 upheld on the ground of failure to exhaust existing redress mechanism under section 7(10) of the Public Appointments (County Assemblies) Approvals Act
  2. 2.Petition dated November 9, 2022 struck out for being premature
  3. 3.Each party to bear own costs
Jurisdiction invoked
Articles 22 and 258 of the Constitution of Kenya, 2010 (as discussed on locus standi); challenge to county public appointments

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "254Hope v Governor, Vihiga County & Others", Case Analysis (2023). Petition dated November 9, 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/514/eng@2023-02-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.