Case ID:73880

Elijah Mwamba Juma & another v Funds Accounts Manager - Nyaribari Chache Constituency & 3 others [2015] eKLR

Case Metadata

Case Number:

Petition 38 of 2014

Parties:

Elijah Mwamba Juma & Joshua Nyakoni Nyabengi v Funds Accounts Manager - Nyaribari Chache Constituency, Constituency Development Committee - Nyaribari Chache Constituency, Constituency Development Fund Board & Richard Nyagaka Tongi

Date Delivered:

28 May 2015

Case Class:

Civil

Court:

High Court at Kisii

Case Action:

Ruling

Judge(s):

James Wakiaga

Citation:

Elijah Mwamba Juma & another v Funds Accounts Manager - Nyaribari Chache Constituency & 3 others [2015] eKLR

Advocates:

Mr Kaburi for Mr Oguttu for the Petitioners.

Mr Soire for Okongo Omogeni and Ogure for the Respondents.

Court Division:

Civil

County:

Kisii

Advocates:

Mr Kaburi for Mr Oguttu for the Petitioners.

Mr Soire for Okongo Omogeni and Ogure for the Respondents.

Case Summary:

Jurisdiction of the High Court in Matters Arising Under section 49 of the Constituencies Development Funds Act

Elijah Mwamba Juma & another v Funds Account Manager, Nyaribari Chache Constituency & 3 others

High Court at Kisii

Petition Number 38 of 2014

Wakiaga, J

May 28, 2015

Reported by Beryl Ikamari and Robai Nasike Sivikhe

Brief Facts

The Petitioners filed a Petition alleging that the 3

rd

Respondent had abdicated her statutory mandate and contributed to the misuse, misappropriation and pilferage of the Constituency Development Fund for Nyaribari Chache Constituency. The Petitioners claimed that the Respondent violated their constitutional rights to compete in various tenders relating to development projects within Nyaribari Chache Constituency.

In response, the Respondents filed a Preliminary Objection. The 2

nd

& 4

th

Respondent’s Preliminary Objection was raised on grounds that the Court lacked jurisdiction to hear and determine the petition and that the Petition was premature and defective. The 3

rd

respondent filed another Preliminary Objection on grounds that the Court lacked jurisdiction to hear and determine the matter as per section 49 of the Constituencies Development Fund Act No. 30 of 2013. The said section 49 provided for a dispute settlement mechanism.

Issue

Whether the High Court had jurisdiction to hear and determine a matter where statutory provisions provided for a dispute settlement mechanism separate from the Court.

Jurisdiction

- jurisdiction of the High Court - jurisdiction of the high court where statutory provisions provided for dispute settlement via a CDF Board and an arbitration panel- whether such statutory provisions oust the jurisdiction of the Court-Constitution of Kenya, 2010, article 165; Constituencies Development Fund Act No 30 of 2013, section 49.

Constituencies Development Fund Act, No. 30 of 2013

Section 49

(1) All complaints and disputes by persons arising due to the administration of this Act shall be forwarded to the Board in the first instance.

(2) Complaints of a criminal nature shall be forwarded by the Board to the relevant government agencies with prosecutorial powers.

(3) Disputes of a civil nature shall be referred to the Board in the first instance and where necessary an arbitration panel whose costs shall be borne by the parties to the dispute, shall be appointed by consensus of the parties to consider and determine the matter before the same is referred to court.

(4) Notwithstanding subsection (3), parties shall be at liberty to jointly appoint an arbitrator of their choice in the event of a dispute but where parties fail to jointly agree on an arbitrator, the Cabinet Secretary may appoint an arbitrator whose costs shall be jointly borne by the parties.

(5)Subject to this Act, no person in the management of the Fund shall be held personally liable for any lawful action taken in his official capacity or for any disputes against the Fund.

Held

Section 49 of the Constituencies Development Fund Act No 30 of 2013 stated that all disputes of a civil nature would be referred to the Constituency Development Fund Board in the first instance and where necessary an arbitration panel. However, the provisions of section 49 of the Constituencies Development Fund Act Number 30 of 2013 did not oust the jurisdiction of the Court under article 165 of the Constitution of Kenya, 2010. The provisions only postponed the exercise of the jurisdiction of the Court until the dispute settlement mechanism provided under the Act had been exhausted.

The Petitioners were required to follow the procedure set under section 49 of the Constituencies Development Fund Act, No 30 of 2013 before coming to Court. The provision was couched in mandatory terms and had no exception.

The issues raised in the Petition were capable of being addressed adequately through the provisions of the Constituencies Development Fund Act, No 30 of 2013 and Public Procurement and Disposal Act.

The Petitioners had not exhausted all other legal avenues available to them hence the Court was not the correct forum for them to ventilate the issues raised.

Preliminary Objection allowed; petition struck out.

History Advocates:

Both Parties Represented

Case Outcome:

Preliminary Objection allowed; Petition dismissed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

PETITION NO.38 OF 2014

IN THE MATTER OF ARTICLES 1,10(2), 19, 20(1), 22(1), 233, 25, 258 OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF VIOLATION OF THE CONSTITUTION 2010

AND

IN THE MATTER OF INFRINGEMENT OF FUNDAMENTAL AND CONSTITUTIONAL RIGHTS

AND

IN THE MATTER OF THE CONSTITUENCY DEVELOPMENT FUND ACT, 2013

AND

IN THE MATTER OF PUBLIC PROCUREMENT AND DISPOSAL ACT, 2005

AND

IN THE MATTER OF NYARIBARI CHACHE CONSTITUENCY

AND

IN THE MATTER OF ARBITRARY AND INDISCRIMINATE ALLOCATION/USAGE OF CDF FUNDS

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS & FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES, 2013

BETWEEN

ELIJAH MWAMBA JUMA

JOSHUA NYAKONI NYABENGI….............................................PETITIONERS/APPLICANTS

VERSUS

THE FUNDS ACCOUNTS MANAGER, NYARIBARI CHACHE CONSTITUENCY

CONSTITUENCY DEVELOPMENT COMMITTEE, NYARIBARI CHACHE CONSTITUENCY

THE CONSTITUENCY DEVELOPMENT FUND BOARD

HON. RICHARD NYAGAKA TONGI ….................................................…...... RESPONDENTS

RULING

By a petition dated 3

rd

November 2014 brought under

Articles 1, 10(2), 19,

20(1), 22(1), 23, 35 & 258

of the

Constitution of Kenya 2010

, the petitioners herein filed this petition against the respondents herein in which they alleged that the 3

rd

respondent had abdicated her statutory mandate and or jurisdiction, which consequently contributed to the misuse, misappropriation and pilferage of the Constituency Development Funds meant for Nyaribari Chache Constituency.

The particulars of abdication and or dereliction of duty were indicated as follows:-

Failing to follow up and ensure compliance.

Allowing the 1

st

and 2

nd

respondents to manipulate the disbursement of funds and thereby deny duly approved projects funding.

Failing to follow up and or investigate complaints or misuse of funds.

Conriving and or colluding with the rest of the respondents to facilitate pilforage.

Employing and or engaging unqualified Funds Accounts Manager.

Disbursing funds in respect of non-existent/ghost development project including Kisii Township Dispensary, Nyang'eni, Nyakebako Dispensary and Kionganyo Tea Buying Centre.

Failing in carrying out statutory and constitutional mandate.

It was further stated that as a result of the conduct of the respondents respectively the petitioners were

denied or deprived of their constitutional rights to compete in various tender to and or in respect of development projects within the Nyaribari Chache Constituency

and that their constitutional and fundamental rights have not only been violated but are also threatened with violation and or infringement and hence the necessity for suitable protection (Emphasis mine).

The particulars of infringement were indicated as:-

Failing to exhibit transparency and accountability in the tendering of Development projects

(Emphasis added).

Open and unbundled display of nepotism.

Open encouragement of misappropriation of Constituency Development Fund.

Diverting and or reallocating monies meant for designated Development Projects without due regard to the rights and interests of the petitioners.

Carrying out and or encouraging direct procurement of goods and services

(Emphasis added).

Abdicating and/or abandoning constitutional responsibilities.

Allowing personal whims and or conflicts to override and or supersede public interest and good.

Defiling the provision of the constitution.

The petitioners therefore sought the following prayers:-

Declaration be issued to the effect that the petitioners are entitled to protection under the provisions of the Constitution 2010.

Declaration that the actions, omissions and or conduct of the respondents complained of constituted and or amount to infringement of the petitioners rights to equal treatment before the law and freedom from discrimination in line with the provisions of

Article 20(1)

and

27(1)

of the

Constitution

.

An order compelling the 1

st

, 2

nd

and 3

rd

respondents to disclose,supply and or avail to the petitioner a fair list of the projects duly approved by the 2

nd

respondent for funding for the year 2013/2014 Nyaribari Chache constituency in line with and in accordance with

Article 35

of the

Constitution 2010

and the amounts of monies which have been disbursed.

An order to compel the respondents jointly and or severally to fully disburse the allocated funds to and in respect of duly approved development projects, without favour, discrimination and or patronage.

An order to compel the 1

st

and 2

nd

Respondents to tender accounts and or in respect of the disbursements made and the expenditure incurred in respect of the duly approved and sanctioned development projects for the year 2013/2014.

Permanent injunction restraining the 3

rd

respondent from disbursing and/or further disbursing funds towards and in respect of development projects prior to and before receipt of full compliant accounts pertaining to and in respect of the usage of the disbursed funds.

Costs of the petition.

The petition was certified urgent and fixed for interpartes hearing and in response thereof the respondents took out preliminary objection as follows:-

2

nd

and 4

th

Respondents

1) The petition has been instituted in clear disregard of

Section 49

of the

Constituencies Development Fund Act No.30 of 2013

the applicable statute.

2) That

in due regard to the foregoing the petition is premature and defective as this honourable court is not seized of the jurisdiction to hear and determine the suit.

3) That

the entire petition is thus misconceived, incompetent, bad in law, incurable, defective, frivolous and abuse of court process.

2

,

3

rd

RESPONDENT

That this Honourable court lacks jurisdiction to hear and determine this matter as per Section 49 of the Constitutency Development Funds Act 2013.

The 4

th

respondent further filed a replying affidavit in respect to the petition the content of which is not relevant for the purposes of this ruling.

Since the court's jurisdiction was challenged through the preliminary objection herein, I invited the parties to submit thereon as I formed the considered view that the issue of jurisdiction had to be determined before the merits of the petition is gone into.

It was submitted by the respondents that the dispute herein is in relation to the implementation of various projects within Nyaribari Chache constituency and therefore the same should have been governed by the provision of

Section 49

of the

Constituencies Development Fund Act No.30 of 2013

and therefore the court's jurisdiction is effectively ousted. In support thereof three High Court decisions of

Peter Ochara Anam & 3 others -vs- Constituencies Development Fund Board & 3 others Kisii Petition No.3 of 2011

,

Geoffrey Kirimi Imathiu & 3 others -vs- Constituency Development Fund Board & others (2013) eKLR

and

Stanley Mungathia Daudi & 4 others -vs- Hon. Cyprian Kubai & others (2013) eKLR

were submitted.

It was further submitted that where the law provides for a procedure the same ought to be followed before the court can assume jurisdiction and in support thereof the following cases were submitted:-

Narok County Council -vs- Transmara County Council & another, Civil Appeal No.25 of 2000

.

Simon Tapai Sannteto Kimunyak Ole Sale versus sila.

Jared Odoyo Okelo -vs- Fredrick Otieno Outa & others CACA No.46 of 2013 and Diana Kethi Kalonzo -vs- IEBC & others

.

On behalf of the petitioners it was submitted that the Board to whom the dispute under

Section 49

of the

Constituency Development Fund Act

is supposed to be referred to is the 3

rd

respondent herein and therefore has an interest and on the issue of jurisdiction it was submitted that

Article 165 (3

)

of the

Constitution

gives the court jurisdiction as well as

Article 20

as regards violation of rights.

It was submitted that the dispute which can be referred to the Board do not include the disputes pertaining to breach and or violation of Fundamental rights and in support thereof the cases of

United States International University (USIU) -vs- Hon. Attorney General & 2 others Nairobi HCC Petition No.170 of 2012

was submitted.

The following issues are therefore identified for determination:-

Whether the court has jurisdiction to entertain this petition.

Whether the petitioner has followed the right procedure.

What order should the court make.

JURISDICTION

It is clear from the provision of

Section 49

of the

Constituencies

Development Fund Act No.30 of 2013

that all disputes of civil nature shall be referred to the CDF Board in the first instance and where necessary an arbitration panel. This provisions of the statute does not oust the jurisdiction of this court which is provided for under

Article 165

of the

Constitution

. What that provision of the Law does is to postpone the exercise of the jurisdiction until some act has been done.

In this regard the court had pronounced itself thus in the case of

Nyeri High Court Petition No.3 of 2014 County Government of Nyeri -vs- The Cabinet Secretary Ministry of Education Science & Technology & another

thus:-

“3. What these provisions of the constitution and statute in respect of the dispute resolution between the national and county government does is not to oust the jurisdiction of the court but to postpone the same until the alternative dispute mechanism have been attempted.”

Though the court has jurisdiction to determine the issue herein, the petitioners should have first followed the set procedure provided for under

Section 40

of the

Constituency Development Fund Act No.30 of 2013

and before coming to court as was stated in the following cases:-

Peter Ochara Anam & others -vs- Constituency Development Fund Board and others Kisii Petition No.3 of 2010

where justice Makhandia as he then was had this to say which I totally agree with:-

“The provision is couched in mandatory terms and has no exception or provisons, coming to court by way of a constitution petition is not excepted either much as the constitution is superior law to the statute aforesaid. In view of this provision and there being no allegation or evidence that the petitioner exhausted these remedies, in bringing this petition, the petitioners have deliberately avoided the procedure and remedy provided for under the Act. They have not proferred any explanation as to why they did not refer any complaint they have raised to the 1

st

respondent as required by law. It has been stated constantly that where there exist sufficient and adequate legal avenue, a party ought not to trivialize the jurisdiction of the court pursuant to the constitution. In indeed suit a party ought to seek such available statutory provision would be redeemed otiose”

It therefore follows that the petitioner has not followed the right procedure in bringing this petition as the issues raised could be adequately address through the provisions of the Constituency Development Fund Act and Public Procurement and Disposal Act and as I stated in

Nyeri High Court Petition No.8 of 2014 Kelvin Kariuki Kinyune -vs- Dedan Kimathi University of Technology

the petitioner having not exhausted all the other legal avenue available to them, this court is not the correct forum for them to ventilate the issues raised as the court can not micro manage the respondents herein.

In this finding I am in the good company of Makau J in

Meru Petition No.5 of 2013

(supra) where he had this to say:-

“This court is aware of the important tenet of the concept of the rule of law that before exercising its jurisdiction under Article 165 of the Constitution in general it must exercise restraint that it must give chance to relevant constitutional bodies or state agencies an opportunity to deal with complaints and or disputes under the relevant provisions of the parent statute. The court can only act where the petitioners demonstrate that the constitutional bodies or state organs have maliciously or through negligence or otherwise failed to carry out their mandate as provided for in the parent statute and not otherwise.”

The constitutional issues raised by the petitioners will be taken up by the Board as was stated by Majanja J in

Abdi Gulia Adan & others -vs- Chairman Mandera West Constituency Development Fund Committee Petition No.169 of 2012

thus:-

“The process established by the Constituencies Development Fund Act are participatory in nature and those making decision on how to disburse development funds are required to take into account several competing and conflicting interest.

This is why Section 52 of the Act requires arbitration in the first instance in an attempt to resolve any dispute.

In resolving such dispute the arbitral tribunal does not keep the constitution in the back pocket. It is required to apply the national values and principle of governance set out in Article 10. The Bill of Rights as required by Article 20 must infuse those decisions thus the petitioner has an assurance that the constitution and the law requires the decision of arbitral tribunal to give effect to the rights and fundamental freedoms of the people he represent

(Emphasis added).

It therefore follows that the petition herein is premature and the preliminary objection is allowed. The petition is hereby struck out and dismissed with no order as to cost.

Delivered, dated and signed at Kisii this 28

th

day of May 2015

J. WAKIAGA

JUDGE

In the presence of

:-

Mr. Kaburi for Mr. Oguttu for Petitioners

Mr. Soire for Okongo Omogen and Ogure for Respondents