REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
PETITION NO. OF 2014
IN THE MATTER OF THE PUBLIC FINANCE MANAGEMENT ACT NO 18 OF 2012, THE COUNTY GOVERNMENT ACT NO. 17 OF 2012, LAWS OF KENYA: ARTICLES 20, 21, 22, 23 AND 165 (3)(b) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 33 (1)(a), 35(1)(b), 43 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 10, 196 & 201 OF THE CONSTITUTION OF KENYA
BETWEEN
MALINDI NORTH RESIDENT ASSOCIATION (MANRA)……………..…1ST PETITIONER
MALINDI SOUTH RESIDENT ASSOCIATION (MASRA)…………………2ND PETITIONER
WATAMU ASSOCIATION……………………………………………….……3RD PETITIONER
KILIFI RESIDENTS ASSOCIATION……………………………………………4TH PETITIONER
VIPINGO RIDGE ASSOCIATION……………………………………………….5TH PETITIONER
MTWAPA STAKEHOLDERS FORUM…………………………………………6TH PETITIONER
KURUWITU RESIDENTS ASSOCIATION……………………………………7TH PETITIONER
AND
KILIFI COUNTY GOVERNMENT……………………………………………1ST RESPONDENT
JOHN KOMBE (Sued in his Capacity as the
County Secretary in charge of Finance & Economic Planning)…………….2ND RESPONDENT
KILIFI COUNTY ASSEMBLY…………..………………………………………3RD RESPONDENT
HON. JAFFAR AMASON KINGI (Sued in his Capacity as the
Governor of Kilifi County)…..……….……………………………….………….4TH RESPONDENT
PETITION
To: The High Court of Kenya
Constitution & Human Rights
Malindi Law Courts
The humble petition of Malindi North Resident Association, Malindi South Resident Association, Watamu Association, Kilifi Residents Association, Vipingo Ridge Asscoiation, Mtwapa Stakeholders Forum, Kuruwitu Residents Association all being registered Associations in the Republic of Kenya states THAT:- 1. The 1st to 7th Petitioners are all registered societies under the Societies Act Cap 108, Laws of Kenya representing the interests of different classes of Residents and Investors within Kilifi County. Their address of service for purposes of this Petition is care of
KIDENDA, ONYANGO, ANAMI & ASSOCIATES, Rivalane Court, Riverside Lane off Riverside Drive P.O. Box 2294 – 00100 Nairobi.
2. The 1st Respondent is the Constitutional entity that governs the region described and demarcated as Kilifi County through its Governor, County Assembly and County Executives.
3. The 2nd Respondent County Executive in charge of Finance within Kilifi County appointed as such pursuant to the Constitution of Kenya under Article 179 (2) (b) and Section 30 (2) (d)(e) of the County Government Act No. 17 of 2012 by the Governor of Kilifi County Government to carry out the duty of inter alia fiscal management of Kilifi County Government.
4. The 3rd Respondent is the body constituted under Article 177 of the Constitution of Kenya, whose roles are outlined under Section 8 and 21 – 24 of the County Government Act No. 17 of 2012, to inter alia, approve the budget and expenditure of the County Government through a “Money Bill” in accordance with Article 207 of the Constitution of Kenya.
5. The 4th Respondent is the elected representative of Kilifi County as Governor pursuant to Article 180 of the Constitution and recognized as responsible for the exercise of County Government Powers through his appointed County Executives, effecting policy and assenting to County Bills pursuant to Section 24 of the County Government Act No. 17 of 2012.
6. The Petitioners jointly and severally through their representatives have on several occasions attempted to engage and involve the Respondents with a view to participating in the process of drafting the County Finance Bill the subject of this suit.
7. To this end the Petitioners through their representatives have had several meetings with different County Officials with a view to receiving information on the process and content of the County Finance Bill with documented minutes alluding to a willingness by these Officials to involve the stakeholders in Kilifi County in the legislative process.
8. However this representations have amounted to mere lip service as repeatedly the Respondents have either personally or through their appointed representatives shown a lack of desire to credibly engage stakeholders in the process of drafting and discussing
the contents of the County Finance Bill 2013/2014, by either failing to attend Stakeholder meetings as scheduled or organizing Stakeholder meetings after giving an inordinately short notice through advertisements or radio announcements.
9. The Petitioners contention is further buttressed by the fact that the draft County Finance Bill circulated to the stakeholders sometime on or around 11th December 2013 after repeated and concerted effort to demand this, is substantively different from the draft County Finance Bill that has been placed before the Members of County Assembly (MCA’s) of Kilifi County for debate.
10. Subsequent to receipt of this first draft sometime in December 2013, any and all attempts by the Petitioners at engaging the County Government of Kilifi with a view to arranging a forum to discuss the proposed provisions in the County Finance Bill has been frustrated at best and ignored at worst.
11. The Petitioners have only recently, sometime in early March 2014, been shown the draft County Finance Bill 2013/2014 presented to the MCA’s whereby they have noted the difference in content of the draft County Finance Bill with even more punitive provisions captured.
12. The Petitioners contend that the draft County Finance Bill as currently drafted has been undertaken in an environment of secrecy and misinformation with no reliable attempt at public consultation or participation.
13. The Petitioners are concerned that the contents of the draft County Finance Bill as currently drafted shall have a far reaching and punitive effect on the Citizens of Kilifi County if some of the levies proposed are not reviewed and/or justified appropriately by the County.
14. The Petitioners believe that had their collective experience and intellect on matters germane to their economy as taxpayers and users of services been taken into consideration, the draft County Finance Bill would have been reflective of a viable balance between the fiscal needs of the County and the aspirations of the Kilifi Citizenry.
15. The Petitioners further aver that if the stakeholders were conscientiously involved in meetings to discuss the draft County Finance Bill, the deficiencies contained in the draft would have been thoroughly debated and adjusted accordingly for the benefit of Kilifi County in general.
16. The Petitioners believe the perfunctory approach with which the Respondents approached the scheduling of meetings and their failure to attend agreed upon meetings with Stakeholders belies a sinister if not lackadaisical attempt to circumvent and defeat fundamental rights and freedoms enshrined in the Constitution of Kenya.
17. The Petitioners aver that if the draft County Finance Bill is passed in its current state it would lead to various negative impacts including loss of revenue for the County and Country as Investors and Tour operators will migrate to other Counties and Countries that provide better environments for business to the great detriment of the Citizens of Kilifi who draw their livelihoods majorly from Tourism and Business Investments in Kilifi County.
18. The Petitioners wish to state that the multi sectoral impact of most of the provisions contained in the draft County Finance Bill and the consequent socio-economic hazard to the Residents of Kilifi County cannot be wished away by the County in the pretext of urgency or strict timelines as fundamental rights of citizens of Kilifi and Kenya are at stake.
19. There already has been arbitrary displays of exorbitant and unjustifiable expenses by the Respondents which leads the Petitioners to having a real fear of the possibility that any monies collected and or levied against the Citizens of Kilifi is done so to support a lavish and luxurious budget that serves individual interests.
20. The Petitioners further aver that the Respondents having drawn up a deficit budget, portends a real danger to the sustainability and feasibility of the County Government of Kilifi’s fiscal plans especially in respect to service delivery and levies that will invariably be charged against the citizens of Kilifi County.
21. The Petitioners have on several occasions requested from the Respondents an accounting of the public monies by the Respondents but have been repeatedly rebuffed by County Officials who have indicated to the Stakeholders that they have no right whatsoever to demand or have access to information pertaining to County Government expenditure and or accounts.
22. The Petitioners aver that the failure by the Respondents to put in place systems and mechanisms that ensure that access to information and public participation at all stages of policy formulation and legislative drafting leave them substantively at variance with Constitutional and Statutory provisions.
23. This attempt at sleight of hand by the Respondents and their failure to appreciate and promote stakeholder participation in the drafting of such a sensitive and far reaching Bill in terms of consequence is in direct contravention of the Petitioners and the Citizenry of Kilifi County fundamental rights and freedoms guaranteed in the Kenyan Constitution.
A. PARTICULARS OF BREACH OF THE PETITIONERS’ RIGHT TO ACCESS INFORMATION
24. The Petitioners aver that they are entitled to the protection of their right to access information as espoused under Article 35 of the Constitution of Kenya and that the said rights have been fundamentally contravened by the misinformation and secrecy that has characterized the preparation of the draft County Finance Bill by the Respondents.
25. The Petitioners further aver that the fact that they have had to beg, cajole and threaten legal action to access information necessary to allow them to constructively make representations on the draft County Finance Bill.
26. The Petitioners further wish to state that even when the Respondents have acquiesced they have done so hypocritically by providing morsels of information that are either irrelevant or outdated that has denied the Petitioners the benefit of their constitutionally guaranteed right to information necessary for them to exercise or protect their right to participate in the preparation of laws that affect their day to day lives. B. PARTICULARS OF BREACH OF THE PETITIONERS’ RIGHT TO FREEDOM OF EXPRESSION
27. The Petitioner avers that the Respondents failure to involve them adequately by taking their views, observations, representations fears and comments in the drafting of the draft County Finance Bill was inconsistent with their right to freely seek, receive and express their ideas as provided for under Article 33 of the Constitution of Kenya.
28. The Petitioners aver that for the reason aforestated and the reasons set out in this Petition and the attached supporting affidavit the Respondents have contravened the Petitioners rights as provided under the bill of rights. C. PARTICULARS OF BREACH OF CERTAIN EXPLICIT CONSTITUIONAL PROVISIONS
29. The Petitioners aver that the Respondents have acted in a manner inconsistent and in contravention of the National Values and Principles of Governance captured under Article 10 (1) (b) & (2) of the Constitution of Kenya.
30. The Petitioners having been informed that the 2nd Respondent is set to debate and pass the draft County Finance Bill aver that unless barred their actions will be contrary to Article 196 (1) (b) of the Constitution of Kenya that requires the County Assembly to facilitate public participation and involvement in the legislative and other business of the assembly and its committees.
31. The Petitioners state that the 1st Respondent herein has substantively breached the provisions espoused under Article 201 that outline principles to be adhered to in all aspects of Public Finance, which include inter alia, openness and accountability, public participation in financial matters. The Petitioners therefore humbly pray THAT:-
A. A declaration that the conduct of the ongoing process of legislative formulation in respect to the draft Kilifi County Finance Bill contravenes Articles 10, 33, 35, 196 & 201 of the Constitution of Kenya in relation to the Petitioners and Citizens of Kilifi County.
B. A declaration that the Petitioners and Citizens of Kilifi County have a right to access any and all accounting and fiscal management information and participate in the Legislative and Policy formulation of the County.
C. An order directing the Respondents to establish mechanisms and systems to ensure access to information and credible public participation by the citizens and stakeholders of Kilifi County in Policy and Legislative processes within the County.
D. An order directing the Respondents to take into account the Petitioners fundamental rights and freedoms as enshrined in the Constitution of Kenya in exercising their authority.
E. An order directing the 2nd Respondent to make available to the Petitioners and other stakeholders all the relevant information on the on-going preparation of the Kilifi County Finance Bill.
F. An injunctive or conservatory order staying the debate, passing and assent of the Kilifi County Finance Bill against the Respondents until the actualization of the Constitutionally guaranteed principles of public participation through established mechanisms of engagement.
G. This Honorable Court does order the Respondents to jointly bear the costs of this petition.
H. Such other orders as this Honorable Court shall deem fit and just to grant in the circumstances prevailing.
DATED at Malindi this twenty fourth day of March 2014
KIDENDA ONYANGO ANAMI & ASSOCIATES
ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY:
KIDENDA ONYANGO ANAMI & ASSOCIATES,
RIVALANE COURT,
RIVERSIDE LANE, OFF RIVERSIDE DRIVE,
P. O. BOX 2294-00100, (REF: KCA/001/013L)
NAIROBI
TO BE SERVED UPON: 1. KILIFI COUNTY GOVERNMENT COUNTY SECRETARY P.O BOX 519-80108 KILIFI 2. COUNTY EXECUTIVE FINANCE KILIFI COUNTY GOVERNMENT
P.O. BOX 519 – 80108 KILIFI 3. THE SPEAKER COUNTY ASSEMBLY OF KILIFI P.O. Box 519 – 80108 KILIFI 4. H.E. JEFFAH AMASON KINGI GOVERNOR COUNTY GOVERNMENT OF KILIFI P.O. BOX 519 – 80108 KILIFI
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
PETITION NO. OF 2014
IN THE MATTER OF THE PUBLIC FINANCE MANAGEMENT ACT NO 18 OF 2012, THE COUNTY GOVERNMENT ACT NO. 17 OF 2012, LAWS OF KENYA: ARTICLES 20, 21, 22, 23 AND 165 (3)(b) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 33 (1)(a), 35(1)(b), 43 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF ARTICLES 10, 196 & 201 OF THE CONSTITUTION OF KENYA
BETWEEN
MALINDI NORTH RESIDENT ASSOCIATION (MANRA)……………..…1ST PETITIONER
MALINDI SOUTH RESIDENT ASSOCIATION (MASRA)…………………2ND PETITIONER
WATAMU ASSOCIATION……………………………………………….……3RD PETITIONER
KILIFI RESIDENTS ASSOCIATION……………………………………………4TH PETITIONER
VIPINGO RIDGE ASSOCIATION……………………………………………….5TH PETITIONER
MTWAPA STAKEHOLDERS FORUM…………………………………………6TH PETITIONER
KURUWITU RESIDENTS ASSOCIATION……………………………………7TH PETITIONER
AND
KILIFI COUNTY GOVERNMENT……………………………………………1ST RESPONDENT
JOHN KOMBE (Sued in his Capacity as the
County Secretary in charge of Finance & Economic Planning)…………….2ND RESPONDENT
KILIFI COUNTY ASSEMBLY…………..………………………………………3RD RESPONDENT
HON. JAFFAR AMASON KINGI (Sued in his Capacity as the
Governor of Kilifi County)…..……….……………………………….………….4TH RESPONDENT
SUPPORTING AFFIDAVIT
I, CHRISTOPHER WILSON a male adult of sound mind of Post Office Private Bag, 80108, Kilifi, within the Republic of Kenya do hereby make oath and state as follows:-
1. THAT I am a past Chairman and current member of the 4th Petitioner with authority from the Chairmen of the 1st – 7th Petitioners to swear this affidavit on their behalf as I am conversant with the facts herein and hence competent to make this statement.
2. THAT I have read the petition filed herewith and reiterate the contents thereof.
3. THAT the Stakeholders in Kilifi County have since late last year attempted to engage the County Government of Kilifi with a view to gleaning information and sharing ideas
on how to best formulate rates and taxation of the Citizens of Kilifi County in a sustainable yet accountable manner.
4. THAT to this end a committee drawing from the Petitioners Associations was formed, to which I was co-opted as a member, to engage the County Government with a view to ensure their views are taken into consideration.
5. THAT in their attempts to do so, these Committee members of the Petitioners Association volunteered their time and resources to meet and engage the County Executives of Finance and Economic Planning and Land, Energy, housing and Physical Planning and despite statements from County Officials indicating a desire to engage the stakeholders they have been unable to secure appointments and or have actionable outcomes from meetings held due to a lackadaisical approach to Citizen participation by the same County Officials.
6. THAT the Representatives of the Petitioners Association have on several occasions attempted to schedule meetings with County officials only for these meetings to be cancelled at the eleventh hour with generic explanations as to the change of circumstance.
7. THAT the several attempts to engage the County Officials by the Committee have been met at times with polite indifference at best and as a dismissive inconvenience to be wished away by perfunctory and non-committal statements of intent to assist at worst.
8. THAT I have been informed by Mr. Maarten Hoogeweegen, a committee member of the task force constituted to engage the Kilifi County Government, which information I believe to be true, that during a meeting held between himself and the 1st Respondent, a commitment to involve stakeholders during the process of formulating policies and laws was agreed upon.
9. THAT subsequently sometime in early October 2013, the 1st Respondent invited Stakeholders to nominate a representative to sit in the Kilifi Budget and Economic Forum where I was proposed as the representative of Stakeholders with Honorable John Safari Mumba serving as my alternate.
10. THAT despite our names being forwarded to the County Government of Kilifi, no further action was taken by the 1st Respondent to formalize our appointment to this Forum and it appeared as if this was only a cosmetic exercise at Stakeholder Participation in the County’s fiscal planning.
11. THAT we later came to learn of a conference held by the Kilifi County Government sometime on or around 18th October 2013, presided over by the 3rd Respondent herein, Hon. Jaffar Amason Kingi, dubbed “Investment and Development for Kilifi County” to which no invitations were sent to any of the Resident Associations and/or members of the Petitioners Association.
12. THAT through a meeting held on 10th December 2013 at the Kilifi County Government offices with Mr. Kenneth Kazungu, the Personal Assistant of Mr. John Mazuri, the County Executive in charge of Land, Energy, Housing and Physical Planning, Mr. Kazungu requested that a list of key persons be forwarded to the County for purposes of disseminating information to Stakeholders so as to improve communication between the County and Stakeholders.
13. THAT once again this was another empty undertaking by the County Officials as this list of key persons was never utilized by the County Government to keep us apprised of any policy or legislative consideration.
14. THAT sometime on or before 12th December 2013, we received a draft County Finance Bill ostensibly making provisions on taxation, levies and other charges to be effected within Kilifi County.
15. THAT despite our concerted attempts at engaging the County during the three months preceding, this draft was generated with zero stakeholder participation with the consequence of shocking the collective conscience of the members of the Petitioners Association owing to its provisions.
16. THAT the Petitioners Associations with a view to putting the County Government of Kilifi on notice as to the illegality and unconstitutionality of their actions in drafting the County Finance Bill without Stakeholder Participation tasked our Advocate on record,
Kevin Anami, to draft an objection letter to the 3rd Respondent, H.E. Governor Jaffar Amason Kingi dated 29th December 2013.
17. THAT this did not illicit any change in modus operandi by the County Government of Kilifi and sometime on or around 14th February 2014, the County Government put up advertisements inviting Stakeholders to make representations on the draft County Finance Bill.
18. THAT suffice it to say, majority of the meetings as scheduled and advertised did not take part prompting another letter from our advocates on record raising the same issues as earlier represented on public participation.
19. THAT it is noteworthy that the Stakeholders invited for the meetings were never given an opportunity to interrogate the draft County Finance Bill and therefore even their involvement when the meetings were far from qualitative in nature.
20. THAT sometime on or around early March 2014, the Petitioners were informed of the existence of a draft County Finance Bill that was substantively different from that presented to them in December 2013.
21. THAT the said draft County Finance Bill had been presented to the Members of County Assembly for debate and approval before the end of March 2014 without any Stakeholder involvement and or comment on the same.
22. THAT I have been advised by my Advocate on record which advise I believe to be sound and true that, owing to the precarious nature of the provisions contained in the said draft County Finance Bill, it behoves this Honourable Court to safeguard the rights and freedoms enshrined in Statute and the Constitution for the Citizens of Kenya and Kilifi by granting the prayers sought in this Petition.
23. THAT I swear this affidavit in support of the Petitioners’ Petition herein for the enforcement of their Constitutional rights and freedoms.
24. THAT what is deponed herein is true to the best of my knowledge, information and belief save where otherwise the sources have been disclosed.
25. THAT I now produce and collectively mark as Exhibit “CW – 1” a bundle of documents in support of this Petition.
SWORN at Malindi by the said )
)
CHRISTOPHER WILSON )
This day of 2014 )
)