Case ID:95433

James Gacheru Kariuk & 3 others v Attorney General & 11 others [2017] eKLR

Case Metadata

Case Number:

Petition 52 & 7 of 2016 & 308 of 2015 (Consolidated)

Parties:

James Gacheru Kariuki, John Ngugi Muigai, Richard Mungai Kagiri & Regina Ngonyo Kiarie v Attorney General, County Government of Kiambu, Chief Magistrate’s Court at Kiambu, Chief Magistrate’s Court Githunguri, Snr. Principal Magistrate Court at Gatundu, Snr. Principal Magistrate’s Court at Kikuyu, Snr. Principal Magistrate’s Court at Limuru , Chief Magistrate’s Court at Thika, Kiambu County Police Commander, Kiambu County Commissioner & Director of Public Prosecutions

Date Delivered:

24 Feb 2017

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Judgment

Judge(s):

Isaac Lenaola

Citation:

James Gacheru Kariuk & 3 others v Attorney General & 11 others [2017] eKLR

Advocates:

none mentioned

Court Division:

Constitutional and Human Rights

County:

Nairobi

Advocates:

none mentioned

Case Summary:

Section 25(2) of the County Governments Act declared inconsistent with Article 199(1) of the Constitution

James Gacheru Kariuki & others v Attorney General & another

Petition 52 & 7 of 2016 & 308 of 2015 (Consolidated)

High Court of Kenya at Nairobi

I Lenaola J

February 24, 2017

Reported by Ochiel J Dudley

Constitutional Law

- coming into force of legislation-coming into force of county legislation-

when does county legislation come into force- where article 199(1) of the Constitution provided that county legislation did not take effect unless published in the Kenya Gazette-Constitution of Kenya, 2010,article 199(1)

Statutes

-interpretation of statutes - where a statutory provision is inconsistent with the Constitution - interpretation of section 25 of the County Governments Act, 2012 on gazetting of county legislation - whether section 25 of the County Governments Act, 2012 envisioned that a County legislation could come into force without necessarily being published in the Kenya Gazette by use of the phrase, ‘whichever comes earlier’-whether section 25 of the County Governments Act, 2012 was a complete derogation from the pre-requisite of the Constitution on publication in the Kenya Gazette and hence invalid to the extent of that inconsistency - whether county legislation as published by the County Government of Kiambu was valid - Constitution of Kenya, 2010, article 199(1); section 25, County Governments Act, 2012.

Brief facts

The consolidated petitions sought a determination whether Section 25(2) of the County Governments Act, 2012 (the Act) was inconsistent with Article 199 of the Constitution in so far as it envisioned that county legislation could come into effect without necessarily having been published in the Kenya Gazette.

Article 199(1) of the Constitution provides that county legislation does not take effect, unless published in the Kenya Gazette. On the other hand, Section 25(2)of the County Governments Act provides that county legislation comes into force fourteen days after publication in the county gazette and the Kenya Gazette; whichever comes earlier. The petitions therefore questioned the constitutional vires of several Kiambu County legislation which the Petitioners averred had not yet been published in the Kenya Gazette as required by the Constitution.

Issues

Whether Section 25 of the County Governments Act, 2012 envisioned that a County legislation could come into effect without necessarily being published in the Kenya Gazette by use of the phrase, ‘whichever comes earlier’ in relation to publication in the Kenya Gazette and the county gazette.

Whether Section 25 requiring publication county legislation in the County

Gazette

was inconsistent with article 199(1) of the Constitution requiring publication in the Kenya

Gazette

and hence invalid to the extent of that inconsistency.

Whether there was a distinction between a Kenya Gazette and County Gazette for purposes of publication of valid County legislation.

Whether county legislation as published by the County Government of Kiambu was valid

Held

Article 199(1

)

of the

Constitution

imposed a mandatory obligation for publication of all County legislations in the Kenya

Gazette

or a supplement to the Kenya

Gazette

and it was only through such publication that a county legislation could gain legitimacy.

The term County

Gazette

was neither defined nor provided for in the Constitution which only provided for a Gazette, defined as the Kenya

Gazette

published by the authority of the National Government or a supplement to the Kenya

Gazette

. However, the County Governments Act defined a county

gazette

as a

Gazette

published by the authority of the County Government or a supplement of such a

Gazette

.

There was a clear distinction between a county gazette and a Kenya gazette and the difference was that whereas the ‘Kenya Gazette’ was published under the authority of the National Government, the ‘County Gazette’ was published under the authority of a County Government. In essence, while the concept of a ‘County Gazette’ had been introduced by the County Governments Act, the Constitution had explicitly required county legislation to be published in the Kenya Gazette for them to take effect.

Article 199(1) of the Constitution provided that county legislation did not take effect unless published in the Gazette. The sub article 2 further provided that national and county legislation could prescribe additional requirements in respect of the publication of county legislation. Accordingly, Section 25 of the County Governments Act had been enacted to provide additional requirements with regards to publication of County legislation. However, any additional requirements contemplated under Article 199(2) of the Constitution could not derogate from the mandatory duty necessitating publication of County legislation in the Kenya Gazette or its supplement and no legislation however well intended could waive the need for such publication.

While

Section 25(2) of the County Governments Act

had made additional requirements to the publication of County Legislation, it had also specified the period and the process by which County legislations came into force. Section 25(2) of the Act had provided that County Assembly legislation would come into force on the fourteenth day after its publication in the County

Gazette

and Kenya

Gazette

whichever came earlier, unless the legislation had stipulated a different date on or time at which it would come into force.

A County

Gazette

was neither a Kenya

Gazette

nor a supplement to the Kenya

Gazette

and as such, County legislation only gained legitimacy upon its publication in the Kenya

Gazette

or a supplement to the Kenya

Gazette

. Further, the definition of a County

Gazette

completely departed from the meaning of the term ‘

Gazette’

as used in article 199 and defined in article 260 of the Constitution. A County

Gazette

, which was a creation of the County Governments Act and not the Constitution, could not in any event supersede its publication in the Kenya Gazette.

To the extent that Section 25(2) of the County Governments Act envisioned that a County legislation could come into effect without necessarily being published in the Kenya

Gazette

by use of the phrase, ‘whichever comes earlier’, then it was a complete derogation from the pre-requisite of the Constitution and hence invalid to the extent of that inconsistency.

A supplement to the Kenya

Gazette

was technically a

Gazette

, the practice being that, a Kenya

Gazette

supplement was ordinarily used to publish

inter alia

Bills, Acts of Parliament and Legal Notices with the aim of supporting the weekly publication of the Kenya

Gazette

. There was therefore no material difference between a Kenya

Gazette

and a supplement to the Kenya

Gazette

. However, in the instant matter, as long as the heading of the legislation indicated that it was a County

Gazette

supplement, then

ipso facto

it remained a County

Gazette

and not a Kenya

Gazette.

It was thus clear from the heading of the Kiambu County Alcohol Drinks Control, Act, 2013 and the Kiambu County Alcoholic Drinks Control (Licensing) Regulations, 2014 that they were not published in the Kenya

Gazette

or a supplement to the Kenya

Gazette

and therefore did not meet the dictates of article 199(v) of the Constitution.

The word ‘Kenya

Gazette

’ had to appear in the heading of a publication in either the Kenya

Gazette

or a Supplement to the Kenya

Gazette

. While the County Governments Act provided for additional publications of County legislations in the County Gazette, any such publications could not deviate from the constitutional requirement of publications in the Kenya

Gazette

for the effectiveness of such legislations.

The Respondents were plainly mistaken to assume that publication of a County

Gazette

supplement equated it to publication in a Kenya

Gazette

supplement. Both publications could be done by the Government Printer but those two kinds of

Gazettes

were distinct and served different purposes the fact of the printer being the same notwithstanding.

It was clear that

Section 25(2)

of the

County Governments Act

was inconsistent with a

rticle 199(1)

of the

Constitution

to the extent of the use of the phrase ‘whichever comes earlier”.

Devolution being a new entrant into the Kenyan Constitution, the implementation of its various visions therein was bound to face several hitches. Some perceived challenges included what was before court being the desire to fully operationalize the working of Counties by putting in place relevant legal safeguards in terms of legislation in a bid to ensure that Counties effectively performed the duties assigned to them under the Fourth Schedule of the Constitution. It was therefore in the interest of justice and for the public good that the operations of Kiambu County were not brought to a stand still for reasons of reliance on an

un-gazetted law

. Additionally, even where legislation had been invalidated by a Court, the invalidation was not retrospective.

(Obiter) “County Assemblies have been given powers to legislate on various issues as detailed out in the Fourth Schedule of the Constitution for the effective operations of their functions. In view of those powers, the Kiambu County Government enacted the Kiambu County Alcoholic Drinks Control Act, 2013 to provide for the licensing and regulation of the production, sale, distribution, consumption and outdoor advertising, of alcoholic drinks and for other connected purposes. Pursuant to the said law, Regulations have been established, operationalizing the Act including providing how the Sub-County Alcoholic Drinks Regulation Committees ought to perform their duties.”

Petition allowed.

The Kiambu County Government to regularize the publication of all its County Legislations in the Kenya Gazette within 3 months failure to which such legislation shall lapse and be invalid. E

ach party to bear its own costs.

Extract:

0

Case Outcome:

County Governments Act is inconsistent with Article 199(1) of the Constitution

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 NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO.52 OF 2016

AS CONSOLIDATED WITH PETITION NO. 308 OF 2015 AND PETITION NO. 7 OF 2016

BETWEEN

JAMES GACHERU KARIUKI…………………………..........1

st

PETITIONER

JOHN NGUGI MUIGAI………………………………….....…2

nd

PETITIONER

RICHARD MUNGAI KAGIRI……………………….................3

rd

PETITIONER

AND

THE HON. ATTORNEY GENERAL…………………….......1

st

RESPONDENT

COUNTY GOVERNMENT OF KIAMBU…………….....….2

nd

RESPONDENT

PETITION NO. 308 OF 2015

BETWEEN

JAMES GACHERU KARIUKI…………………...............…….1

st

PETITIONER

JOHN NGUGI MUIGAI ……………………………............….2

nd

PETITIONER

REGINA NGONYO KIARIE………………………….....….…..3

rd

PETITIONER

AND

COUNTY GOVERNMENT OF KIAMBU……………....…....1

st

RESPONDENT

CHIEF MAGISTRATE’S COURT AT KIAMBU…….............2

nd

RESPONDENT

CHIEF MAGISTRATE’S COURT GITHUNGURI……...........3

rd

RESPONDENT

SNR. PRINCIPAL MAGISTRATE COURT AT GATUNDU...4

th

RESPONDENT

SNR. PRINCIPAL MAGISTRATE COURT AT KIKUYU…...5

th

RESPONDENT

SNR. PRINCIPAL MAGISTRATE COURT AT LIMURU......6

th

RESPONDENT

CHIEF MAGISTRATE’S COURT AT THIKA…....….......…..7

th

RESPONDENT

KIAMBU COUNTY POLICE COMMANDER…...……....….8

th

RESPONDENT

KIAMBU COUNTY COMMISSIONER…..…….….......……9

th

RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS………..…….10

th

RESPONDENT

HON. ATTORNEY GENERAL………………………....…..11

th

RESPONDENT

AND

PETITION NO. 7 OF 2016

BETWEEN

RICHARD MUNGAI KAGIRI…………………...................………PETITIONER

AND

THE COUNTY GOVERNMENT OF KIAMBU……….......…….RESPONDENT

JUDGMENT

Background

1. Petition No. 308 of 2015, dated 20

th

July, 2015, was filed in this Court on 22

nd

July, 2015 and is supported by the Affidavit of James Gacheru Kariuki sworn on 20

th

July, 2015. The Petition in summary challenges the constitutionality of several Kiambu County legislations, which the Petitioners avers, have not yet been published in the Kenya Gazette as is mandated by the Constitution.

2. In that Petition, they seek the following orders

inter alia

:

(a) That a mandatory injunction do issue compelling the 1

st

Respondent to forthwith put up in place the necessary modified County committee(s) to deal with Liquor licensing, control and regulation under the Alcoholic Drinks Control Act, 2010 as envisaged by the provisions of Section 8(2) of the County Government Act, 2012.

(b) That the Court do stay any operations under the Kiambu County Alcoholic Drinks Control Act, 2013 and the Regulations thereunder and the Kiambu County Emergency Fund Act, 2013 and the Regulations thereunder and the Kiambu County Education Bursary Fund Act, 2014 and the Regulations thereunder and the Kiambu County Youth, Women and Persons with Disability Enterprise Fund Act, 2014 and the Regulations thereunder pending the hearing and determination of this application and or Petition and or until further orders of this Honourable Court.

(c) That a prohibitory injunction do issue prohibiting the 1

st

and 10

th

Respondents, their agents and servants from instituting and or conducting any criminal prosecutions under the Alcoholic Drinks Control Act, 2010 and the Regulations thereunder in respect of the issues of licensing until the 1

st

Respondent puts in place the necessary County committee(s) to issue licenses under the Act herein envisaged by the provisions of Section 8(2) of the County Government Act, 2012 and until the Committee so established completes its task.

(d) That a prohibitory injunction do issue prohibiting the 2

nd

, 3

rd

, 4

th

, 5

th

, 6

th

and 7

th

Respondents from admitting any charges preferred against any person who was licensed to operate a liquor outlet or manufacture under the Alcoholic Drinks Control Act, 2010 by National Authority for Campaign Against Alcohol and Drug Abuse (NACADA) in Kiambu County until the 1

st

Respondent puts up in place the necessary Committee(s).

(e) That a prohibitory injunction do issue prohibiting the 1

st

, 8

th

and 9

th

Respondents, their agents, servants, employees or any other person claiming from any of them from harassing, arresting, detaining and or preferring charges over liquor licenses against any person who was licensed to operate a liquor outlet or manufacture under the Alcoholic Drinks Control Act, 2010 in Kiambu County until the 1

st

Respondent puts up in place the necessary County Committee(s).

3. Petition No. 7 of 2016, dated 7

th

January, 2016 was subsequently filed on 8

th

January, 2016 by sole Petitioner, Richard Mungai Kagiri, seeking to compel the County Government of Kiambu to furnish him with the following documents:

(i) A copy of the Kenya Gazette or a Supplement therein where the Kiambu County Alcoholic Drinks Control Act, 2013 was published or the relevant Gazette Notice numbers.

(ii) A copy of the Kenya Gazette or a Supplement therein where the Kiambu County Alcoholic Drinks Control Licensing Regulations were published or the relevant Gazette Notice numbers.

(iii) A copy of the Kenya Gazette or a Supplement therein where the sub-county liquor licensing committees were published or the relevant Gazette Notice numbers.

(iv) Information relating to events leading to the establishment of the sub-county liquor licensing committees.

4. On 21

st

January, 2016, when the matter came up for mention before me, parties agreed to have prayers (iii) and (iv) above marked as settled and consequently, I noted that the remainder of the Petition would be heard on merit and for determination of the question whether County legislation must be published in the Kenya Gazette, in the County Gazette only; or in both.

5. On 12

th

February, 2016, the 1

st

and 2

nd

Petitioners in Petition No. 308 of 2015 and the Petitioner in Petition No. 7 of 2016 jointly filed Petition No. 52 of 2016 dated 10

th

February, 2016 seeking the following orders:

(a) A declaration do issue that the provisions of Section 25(2) of the County Government Act, Act No. 17 of 2012 is inconsistent with the provisions of Article 199(1) of the Constitution of Kenya, 2010 to the extent of the use of the words, “whichever comes earlier” and hence invalid.

(b) An order condemning the Respondents to pay for the costs of this petition.

6. Petition No. 52 of 2016 is premised on the following grounds:

(a) That Article 199(1) of the Constitution has been contravened and is threatened with perpetual contravention.

(b) That the provisions of Section 25(2) of the County Governments Act, provides that when a county legislation is published in a county Gazette and the publication in the county gazette comes earlier than the publication in the Kenya Gazette or a supplement to the Kenya Gazette, the county legislation takes effect.

(c) That the contravention of Article 199(1) of the Constitution has assumed legalism in the Interim Judgment dated 13

th

November, 2015 by Lenaola J in the case of Africa Rafiki Ltd. & 2 Others v. Nairobi City County Government Petition No. 295 of 2014 as consolidated with Petition No. 1 of 2015 and Petition No. 315 of 2014.

7. In addition, on 1

st

April, 2016, the Petitioners in Petition No. 308 of 2015 further filed a Notice of Motion Application dated 29

th

March, 2016 seeking consolidation of all the three Petitions on the following grounds:

(a) That Petition No. 52 of 2016 coming up for mention before Lenaola J on 4

th

April, 2016 has a preceding question the basis upon which the question in Petition No. 308 of 2015 lies.

(b) That in the event that the instant Petition herein is determined before or separately from Petition No. 52 of 2016 the preceding question which is the inconsistency of the provisions of Section 25(2) of the County Government Act to the extent of the words “whichever comes earlier” with the provisions of Article 199(1) of the Constitution will remain unanswered in the Petition herein.

(c) That the Petitioners herein have fortunately discovered in good time that Section 25(2) of the County Government Act has previously formed the ratio decidendi in Petition No. 295 of 2014 as consolidated with Petition No. 1 of 2015 and Petition No. 315 of 2014.

(d) That the Petitioners herein have challenged the constitutionality of the provisions of Section 25(2) of the County Government Act to the extent of the words “whichever comes earlier” in Petition No. 52 of 2016.

(e) That in order that the Petitioners herein assist the court to save on judicial time and strive to achieve a clear jurisprudence, it is only just and prudent to consolidate the petition herein with Petition No. 52 of 2016.

(8) Subsequently to the filing of the above Notice of Motion Application, all the parties in the three Petitions appeared before me on 4

th

April, 2016, and by consent, agreed to the consolidation of all the three Petitions with Petition No. 52 of 2016 being the lead file. Thereafter, on 12

th

April, 2016, parties agreed that the issues that now fall for determination are the following:

(i) Whether County legislation must be published for legitimacy in the Kenya Gazette or in the County Gazette only.

(ii) Whether Section 25(2) of the County Governments Act is inconsistent with Article 199 of the Constitution.

(iii) Whether County legislation as presently published by the County Government of Kiambu is valid.

(iv) Whether the Petitioners are entitled to the reliefs sought.

9. It is worth noting that only the Hon. Attorney General and the County Government of Kiambu participated in these proceedings as Respondents and all the other Respondents enjoined in Petition No. 308 of 2015 did not make any appearance.

The 1

st

Petitioner’s Case

10. The 1

st

Petitioner, James Gacheru Kariuki, appears in person and his case is as contained in Petition No. 308 of 2015, Petition No. 52 of 2016 and the Supporting Affidavits sworn by himself on 29

th

March, 2016 and 20

th

July, 2015 as well as his oral submissions made in Court.

11. It was the 1

st

Petitioner’s submission that

Section 25(2)

of the

County Governments Act

is inconsistent with

Article 199

of the

Constitution

since it provides that

‘….County Assembly legislation shall come into force on the fourteenth day after its publication in the county Gazette and Kenya Gazette,

whichever comes earlier

…’

In that regard, he asserts that the use of the term

‘whichever comes earlier’

in

Section 25(2)

aforesaid paints a scenario where a County legislation may come into force upon being published in the County

Gazette

only, if such a publication would precede its publication in the Kenya

Gazette

. He submits that the possibility of such a situation happening undermines the content and intent of

Article 199(1)

of the

Constitution

which provides that County legislations shall only come into effect upon being published in the

Gazette

and according to him, the term

Gazette

as used in the Constitution refers to the Kenya

Gazette

and not the County

Gazette.

Consequently, he implores this Court to declare

Section 25(2)

of the

County Governments Act

to be inconsistent with the Constitution in as far it uses the term

whichever comes earlier

in the above context.

12. The 1

st

Petitioner further challenges the finding of this Court in the case of

Africa Rafiki Ltd & 2 Others v. Nairobi City County Government & 3 Others

,

Petition No. 295 of 2014 which he submits, legitimized the application of

Section 25(2)

of the

County Governments Act

with regard to publication of a County legislation in the County

Gazette.

The 2

nd

Petitioner’s Case

13. The 2

nd

Petitioner, John Ngugi Muigai’s case is as contained in Petition No. 308 of 2015 and Petition No. 52 of 2016. He submits that according to

Article 199(1)

of the

Constitution

, a County legislation only come into effect upon being published in the Kenya

Gazette

and asserts that the

County Governments Act

has given a leeway for publication of such legislation in the County

Gazette

, to the exclusion of the Kenya

Gazette

. In that regard, he submits that any such exclusive publication in the County

Gazette

contravenes the

Constitution

and therefore

Section 25(2)

of the

County Governments Act

is inconsistent with

Article 199

of the

Constitution

.

14. Furthermore, the 2

nd

Petitioner contends that the word ‘Gazette’ having been defined under

Section 2

of the

Interpretation and General Provisions Act, Cap 2

of the

Laws of Kenya,

no other definition as provided for under any other statute should be allowed to stand, and he therefore disagrees with the Respondents’ contention that a County

Gazette

is a supplement to the Kenya

Gazette

.

The 3

rd

Petitioner’s Case

15. The 3

rd

Petitioner, Richard Mungai Kagiri’s case is as contained in Petition No. 7 of 2016, Petition No. 52 of 2016 and the Supporting Affidavit sworn by himself on 7

th

January, 2016.

16. Like his Co-Petitioners, he challenges the publication of County legislation in the County

Gazette

instead of the Kenya

Gazette

and has annexed to his affidavit the Kiambu County Alcoholic Drinks Control Act, 2013 and the Kiambu County Alcoholic Drinks Control (Licensing) Regulations, 2014 marked as exhibit “KM 1” and “KM 2”, respectively. He asserts that these legislations were only published in the County

Gazette

and not in the Kenya

Gazette

as is required and are therefore invalid.

17. He further submits that he is at risk of being charged in Court with the offence of contravening the Kiambu County Alcoholic Drinks Control Act 2013 and the Regulations thereunder and that should the Court declare the referenced Kiambu County laws as unconstitutional, then his imminent prosecution would also be declared to be unconstitutional.

The 1

st

Respondent’s Case

18.The 1

st

Respondent, the Attorney General, relies on his written submissions dated 26

th

May, 2016 and his position is that every County legislation must be published in the Kenya Gazette whether or not it would eventually be published in the County Gazette. In this regard, he relies on the case of

Tyson Ng’etich & another v Governor Bomet County Government & 5 Others;

Petition No. 415 of 2014

[2015] eKLR where this Court noted that,

“Article 199(1) of the Constitution is crystal clear that a County legislation does not take effect unless published in the Gazette.”

19. The AG further submits that the publication in the County

Gazette

envisaged under

Section 25(2)

of the

County Government Act

is an additional requirement to what is provided for under

Article 199(2)

of the

Constitution

. Consequently, publication in the Kenya

Gazette

takes precedence over publication in the County

Gazette

and the use of the words, ‘

whichever comes earlier’

in

Section 25(2)

of the

County Government Act

places the provision at variance with

Article 199(1)

of the

Constitution

as it purports to place the Kenya

Gazette

and the County

Gazette

at par with each other. In support of his proposition, the AG made reference to

Article 2

of the

Constitution

which recognizes the Constitution as the supreme law of the land and it was his submission therefore, that the term,

‘whichever comes earlier’,

is in conflict with the Constitution.

20. Notwithstanding his submissions above, it was his further contention however that the Kiambu County legislations in issue were published by the Government Printer as a supplement to the Kenya

Gazette

and disputed the submission that the publications are done in the County

Gazette

as alleged by the Petitioners. He asserts further that the use of the term Kiambu County in the heading of the ‘gazette’ notices exhibited by the Petitioners is simply a mechanism to distinguish various legislations from different Counties but they remain notices supplementary to the Kenya Gazette. In addition, he submitted that the Petitioners have not, in any way, provided evidence showing that there is indeed a County Printer established by the Kiambu County Assembly for purposes of publishing County legislations.

21. In conclusion, he contends that the legislations passed by the Kiambu County Assembly are within the law and in conformity with the procedural requirements of

Article 199(1)

of the

Constitution

and urges the Court to dismiss the Petition despite his submissions above on the illegality of

Section 25(2)

aforesaid.

The 2

nd

Respondent’s Case

22. The 2

nd

Respondent, the County Government of Kiambu in presenting its case relies on the Replying Affidavit sworn by Fredrick M. Kitema, on 20

th

January, 2016 as well as the written submissions dated 26

th

May, 2016, as well as the oral submission made in Court by its Counsel Miss Kamande.

23. The position of Kiambu County Government is that, a County

Gazette

is a supplement to the Kenya

Gazette

and in support of that proposition, its Counsel relied on

Article 260

of the

Constitution

which defines the Gazette to mean,

‘the Kenya Gazette published by authority of the national Government, or a supplement to the Kenya Gazette.’

24. On the issue of whether

Section 25(2)

of the

County Governments Act

is inconsistent with

Article 199(1)

of the

Constitution,

the 2

nd

Respondent’s position is that

Section 25(2)

deals with ‘coming into force’ of a county legislation whereas

Article 199

deals with ‘publication’ of county legislation. Accordingly, the two legal provisions are distinct and deals with two separate aspects, which are; publication of a county legislation and coming into force of a county legislation.

25. Further, the 2

nd

Respondent contends that in the spirit of co-operation between different levels of Government, the National Government through the Government Printer publishes county legislation as special issues of the Kenya

Gazette

in the style of County

Gazette

supplements. Thus the special issues of the Kiambu County

Gazette

Supplements as published, suffice and meet the threshold provided for under

Article 199

of the

Constitution

and

Section 25

of the

County Governments Act

. In furtherance of this position, the 2

nd

Respondent placed reliance on the decision in

Africa Rafiki Ltd & 2 Others v Nairobi City County Government & 3 Others

(supra) and consequently urged the Court to dismiss the Petitions.

Determination

26. The issues for consideration as framed and agreed upon by the parties are the following:

(i) Whether County legislation must be published for legitimacy in the Kenya Gazette or in the County Gazette only.

(ii) Whether Section 25(2) of the County Governments Act is inconsistent with Article 199 of the Constitution.

(iii) Whether County legislation as presently published by the County Government of Kiambu is valid.

(iv) Whether the Petitioners are entitled to the reliefs sought.

(

a)

Whether County legislation must be published for legitimacy in the Kenya Gazette or in the County Gazette only.

27. I shall begin my analysis on this issue by making reference to

Article 199(1)

of the

Constitution

which provides as follows;

“County legislation does not take effect unless published in the Gazette.”

28.

Article 260

goes ahead to define a ‘Gazette’ as;

“

the Kenya Gazette published by authority of the National Government or a supplement to the Kenya Gazette.”

29. Thus,

Article 199(1)

may equally be read as, “

County legislation does not take effect unless published in the Kenya Gazette or a supplement to the Kenya Gazette.”

30. It is also not in doubt that

Article 199(1)

of the

Constitution

imposes a mandatory obligation for publication of all County legislations in the Kenya

Gazette

or a supplement to the Kenya

Gazette

and it is only through such publication that a county legislation can gain legitimacy.

What therefore is a County Gazette, if at all and is there any relationship between a County Gazette and the Kenya Gazette?

31. The term ‘County

Gazette

’ is not defined nor provided for in the

Constitution

which only provides for a

Gazette,

which has been defined as the Kenya

Gazette

published by the authority of the National Government or a supplement to the Kenya

Gazette

. However, the

County Governments Act

defines a ‘County

Gazette

’ as a

Gazette

published by the authority of the County Government or a supplement of such a

Gazette.

This shows that there is a clear distinction between a ‘County

Gazette’

and a ‘Kenya

Gazette’

and the difference as can be seen above is; whereas the

‘

Kenya

Gazette’

is published under the authority of the National Government, the ‘County

Gazette’

is published under the authority of a County Government.

32. In essence, while the concept of a ‘County

Gazette’

was introduced by the

County Governments Act

, the

Constitution

explicitly requires County legislation to be published in the Kenya Gazette for them to take effect. I so find.

(b)

Whether Section 25(2) of the County Governments Act is inconsistent with Article 199 of the Constitution

.

33.

Article 199

of the

Constitution

provides thus;

(1) County legislation does not take effect unless published in the Gazette.

(2) National and County legislation may prescribe additional requirements in respect of the publication of county legislation.

34. Pursuant to the above Article,

Section 25

of the

County Governments Act

was then enacted to provide additional requirements with regards to publication of County legislation. At the outset, I must however state that any additional requirements contemplated under

Article 199(2)

of the

Constitution

should not derogate from the mandatory duty necessitating publication of County legislation in the Kenya

Gazette

or its supplement and no legislation however well intended can waive the need for such publication.

35. For avoidance of doubt, the said

Section 25

provides as follows;

(1) A legislation passed by the County Assembly and assented to by the Governor shall be published in the county Gazette and Kenya Gazette within seven days after assent.

(2) Subject to subsection (3),

the County Assembly legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette, whichever comes earlier, unless the legislation stipulates a different date on or time at which it shall come into force.

(3) A County Assembly legislation that confers a direct benefit whether financial or in kind on members of the county assembly shall come into force after the next general election of members of the County Assembly.

(4) Subsection (3) does not apply to an interest that members of County Assembly have as members of the public.

(Emphasis added)

36. While therefore

Section 25(2)

has made additional requirements to the publication of County Legislation, it has also specified the period and the process by which a County legislations comes into force in that

‘…

the county assembly legislation shall come into force on the fourteenth day after

its publication in the county Gazette and Kenya Gazette, whichever comes earlier

, unless the legislation stipulates a different date on or time at which it shall come into force.”

37. Flowing from the above, I make several observations. Firstly, the provision reinforces the fact that County legislation ought to be published in both the Kenya

Gazette

and the County

Gazette

and that such publication may be done concurrently or one after the other. The Section goes further to provide that the

legislation shall come into force on the fourteenth day after its publication in the County Gazette and Kenya Gazette,

whichever comes earlier and the Petitioners now impugn the inclusion of the term, ‘whichever comes earlier,’ since it presupposes the possibility of a County legislation coming into force upon it’s publication in the County

Gazette

only and where it precedes publication in the Kenya

Gazette

.

38. As I have already stated above in my analysis of the first issue, a County

Gazette

is neither a Kenya

Gazette

nor a supplement to the Kenya

Gazette

and as such, County legislation only gains legitimacy upon its publication in the Kenya

Gazette

or a supplement to the Kenya

Gazette

. Further, as already elaborated upon, the definition of a County

Gazette

completely departs from the meaning of the term ‘Gazette’ as used in

Article 199

and defined in

Article 260

of the

Constitution

. A County

Gazette

and which is a creation of the

County Governments Act

and not the

Constitution

cannot in any event supersede in its publication, the

Kenya Gazette

.

39. I therefore agree with the Petitioners that to the extent that

Section 25(2)

of the

County Governments Act

envisions that a County legislation may come into effect without necessarily being published in the Kenya

Gazette

by use of the phrase, ‘whichever comes earlier’, then it is a complete derogation from the pre-requisite of the Constitution and hence invalid to the extent of that inconsistency.

(c)

Whether County legislation as presently published by the County Government of Kiambu is valid.

40. In answering this issue, I shall interrogate whether the impugned Kiambu County legislation was published in the County

Gazette

or the Kenya

Gazette.

Closely related to this, is the determination of the question as to when the relevant legislation came into effect should I find that it was published in both the County

Gazette

and the Kenya

Gazette

.

41. The impugned legislation and the Regulations made thereunder are annexed to the supporting affidavit of the 1

st

Petitioner in Petition No. 308 of 2015 as well as the Supporting Affidavit of the Petitioner in Petition No. 7 of 2016. Exhibits ‘JGK2a’ and ‘KM1’ contain the

Kiambu County Alcohol Drinks Control Act, 2013

and an extract of the heading is as follows;

Kiambu County Gazette Supplement No. 5(Acts No.2)

REPUBLIC OF KENYA

__________

KIAMBU COUNTY GAZETTE

SUPPLEMENT

COUNTY ASSEMBLY ACTS, 2013

NAIROBI, 19

TH

August, 2013

CONTENT

Act PAGE

The Kiambu County Alcohol Drinks Control, Act, 2013……………………

42. An extract of Exhibit ‘JGK2b” and ‘KM 2’ which is the

Kiambu County Alcoholic Drinks Control (Licensing) Regulations, 2014

has the presentation shown below;

SPECIAL ISSUE

Kiambu County Gazette Supplement No. 1

6

th

January, 2014

(Legislative Supplement No.1)

LEGAL NOTICE NO.1

THE KIAMBU COUNTY ALCOHOLIC DRINKS CONTROL ACT

(No. 2 of 2013)

IN EXERCISE of the powers conferred by section 67 of the Kiambu County Alcoholic Drinks Act, 2013, the Executive Member responsible for alcohol control, makes the following Regulations:-

THE KIAMBU COUNTY ALCOHOLIC DRINKS CONTROL (LICENSING) REGULATIONS, 2014

43. The Respondents in the above context argue that County legislations are published as special issues of the Kenya

Gazette

in the style of County

Gazette

supplements, and thus the special issues of the Kiambu County

Gazette

supplements as published suffice and meet the threshold provided in

Article 199

of the

Constitution

and

Section 25

of the

County Governments Act

. I do not agree with that proposition because a supplement to the Kenya

Gazette

is technically a

Gazette

, the practice being that, a Kenya

Gazette

supplement is ordinarily used to publish

inter alia

Bills, Acts of Parliament and Legal Notices with the aim of supporting the weekly publication of the Kenya

Gazette

. There is therefore no material difference between a Kenya

Gazette

and a supplement to the Kenya

Gazette

but in this particular case, as long as the heading of the legislation indicates that it is a County

Gazette

supplement, then

ipso facto

it remains a County

Gazette

and not a Kenya

Gazette

. In that regard, it is clear from the heading of the Kiambu County

Alcohol Drinks Control, Act, 2013

and the

Kiambu County Alcoholic Drinks Control (Licensing) Regulations, 2014

that they were not published in the Kenya

Gazette

or a supplement to the Kenya

Gazette

.

44. An example of a Kenya

Gazette

supplement which is the

Excise Duty Act, 2015

is worded as follows;

SPECIAL ISSUE

Kenya Gazette Supplement No. 181 (Acts No. 23)

REPUBLIC OF KENYA

____________

KENYA GAZETTE SUPPLEMENT

ACTS, 2015

45. The word

‘Kenya Gazette’

therefore must appear in the heading of a publication in either the Kenya

Gazette

or a Supplement to the Kenya

Gazette

and it is misleading for the 2

nd

Respondent to claim that the Kiambu County legislations attached to the 1

st

Petitioner’s document are publications in the Kenya

Gazette

yet they have evidently been referred to as Kiambu County

Gazette

supplements. At the very least, the 1

st

and 2

nd

Respondents, should have provided evidence of publication of the challenged Kiambu County legislations in the Kenya

Gazette

. Instead, the 2

nd

Respondent, through its Replying Affidavit sworn on 20

th

January, 2016 by its County Secretary, Fredrick M. Kitema, in reference to Petition No. 308 of 2015 only makes a sweeping statement that it complied with

Article 199(1)

of the

Constitution

and operationalized the challenged laws by publishing them in the Kenya

Gazette

.

46. Further, the said affidavit goes on to state that, “

the County Gazette supplements through which the afore-mentioned laws were operationalized thus suffice and meet the threshold as provided in Section 25 of the County Governments Act, 2012 which require publishing of county legislation in both the County Gazette and Kenya Gazette.”

While I do not dispute that the

County Governments Act

provides for additional publications of County legislations in the County

Gazette

, but as already clarified earlier, any such publications must not deviate from the constitutional requirement of publications in the Kenya

Gazette

for the effectiveness of such legislations. Thus, the Respondents are plainly mistaken to assume that publication of a County

Gazette

supplement equates it to publication in a Kenya

Gazette

supplement. Both publications may be done by the Government Printer but those two kinds of

Gazettes

are distinct and serve different purposes the fact of the printer being the same notwithstanding.

47. It is therefore my finding that the

Kiambu County Alcohol Drinks Control, Act, 2013

and

Kiambu County Alcoholic Drinks Control (Licensing) Regulations, 2014

as currently published do not meet the dictates of

Article 199(v)

of the

Constitution.

48. Before I leave this issue, the Petitioners made reference to my earlier decision in

Afrika Rafiki Ltd (supra)

but having looked at it again, the present issue was never one to be addressed in that judgment.

(d)

Whether the Petitioners are entitled to the relief sought.

49. The Petitioners have sought diverse prayers in their various Petitions before this Court. In Petition No. 52 of 2016, the Petitioners seek a declaration that

the provision of Section 25(2) of the County Government Act, Act No. 17 of 2012 to the extent of the use of the words, “whichever comes earlier” is inconsistent with the provisions of Article 199(1) of the Constitution of Kenya, 2010 and anything done in pursuance of the meaning of the words, “whichever comes earlier” is invalid.

From my analysis above, it is clear that

Section 25(2)

of the

County Governments Act

is inconsistent with

Article 199(1)

of the

Constitution

to the extent of the use of the phrase ‘whichever comes earlier”.

50. Further, in Petition No. 308 of 2015, the Petitioners seek a mandatory injunction compelling the Kiambu County Government to put in place the necessary modified county committees to deal with liquor licensing control and regulation under the

Alcoholic Drinks Control Act, 2010

as envisaged by the provisions of

Section 8(2)

of the

County Government Act, 2012.

In essence, the Petitioners are impugning all actions done in reliance to

Kiambu County Alcohol Drinks Control Act, 2013

.

51. I should note in passing however that County Assemblies have been given powers to legislate on various issues as detailed out in the

Fourth Schedule

of the

Constitution

for the effective operations of their functions. In view of those powers, the Kiambu County Government enacted the

Kiambu County Alcoholic Drinks Control Act, 2013

to provide for the licensing and regulation of the production, sale, distribution, consumption and outdoor advertising, of alcoholic drinks and for other connected purposes. Pursuant to the said law, Regulations have been established, operationalizing the Act including providing how the Sub-County Alcoholic Drinks Regulation Committees ought to perform their duties.

52. I take the position that devolution being a new entrant into our

Constitution

, the implementation of its various visions therein is bound to be faced with several hitches. Some perceived challenges include what is now before me being the desire to fully operationalize the working of Counties by putting in place relevant legal safeguards in terms of legislation in a bid to ensure that Counties effectively perform the duties assigned to them under the

Fourth Schedule

of the

Constitution

. I therefore opine that it is in the interests of justice and for the public good, that the operations of Kiambu County are not brought to a stand still for reasons of reliance on an ungazetted law. I say so well aware that all State organs, State officers, public officers and all persons are bound by the

Constitution

and as such the edicts of the

Constitution

must be observed at all times.

53. In addition, I am aware that even in instances where a legislation in invalidated by a Court, the invalidation is not retrospective as was stated in

Chicot County Drainage Dist. v Baxter State Bank 308 U.S. 371 (1940)

where the Court held as follows:

“The past cannot always be erased by a new judicial declaration. The effect of the subsequent Ruling as to invalidity may have to be considered in various aspects-with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of sights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination…[;]

it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity

cannot be justified”

[emphasis supplied]

54. In that regard, I direct that the County Government of Kiambu and the Attorney General should ensure that all Kiambu County legislations that are not published in the Kenya

Gazette

are within a period of 3 months effectively so published in accordance with

Article 199(1)

of the

Constitution

. The lapse of 3 months will automatically lead to an invalidation of the said legislations. They shall in the meantime remain operational.

55. The Petitioners also sought a prohibitory injunction against the 1

st

to 10

th

Respondents, in Petition No. 308 of 2015 stopping them from instituting or conducting criminal prosecutions under the impugned laws. On this issue, I note that other than the 1

st

and the 11

th

Respondent, all other Respondents in Petition No. 308 of 2015 did not participate in these proceedings and I am therefore constrained not to make any orders against them. In any event none of those issues were framed for determination in this judgment.

56. With regard to prayers in Petition No. 7 of 2016 seeking production of various documents by the County Government of Kiambu, it is my position that those prayers have been overtaken by events as the said documents sought to be produced are already part of the record and are also in the custody of the Petitioner therein.

Disposition

57. From my findings above, the proper orders to make are the following:

i) It is hereby declared that Section 25(2) of the County Governments Act is inconsistent with Article 199(1) of the Constitution to the extent that it uses the phrase “whichever comes earlier” and is invalid to that extent only.

ii) It is hereby declared that a County Legislation does not take effect unless it is published as such in the Kenya Gazette in line with Article 199(1) of the Constitution and thereafter in the County Gazette, if need be.

iii) The Kiambu County Government shall regularize the publication of all its County Legislations in the Kenya Gazette within 3 months failure to which such legislation shall lapse and be invalid. For avoidance of doubt, until such an eventuality, the said legislations such continue to be operative.

iv) As for costs, let each party bear its own costs as I consider that the Petition before me was brought in the interests of the Kiambu County populace thus in the public interest.

58. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 23

RD

DAY OF FEBRUARY, 2017

ISAAC LENAOLA

JUDGE

DELIVERED AND SIGNED AT NAIROBI THIS 24

TH

DAY OF FEBRUARY, 2017

E. CHACHA MWITA

JUDGE