The three judge bench composed of Lady Justice Martha Koome, Justice Milton Makhandia and Kairu Gatembu overturned a previous judgment issued by High Court Judge Mumbi Ngugi on June 29, 2012 declaring the appointments illegal.
The Court of Appeal ruled in favour of Interior Principal Secretary nominee Mutea Iringo stating that President Kibaki made the appointments by the power conferred to him by the previous constitution and the appointments were therefore valid.
“Contrary to the findings and decision of Mumbi J, sections 23 and 24 of the former Constitution were in force when President Kibaki invoked them to appoint/deploy County Commissioners and they remained in force until the first General Election was held on March 4, 2013,” the summary judgement reads.
Section 24 of the former constitution reads, “the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the president.”
Iringo had moved to the Court of Appeal after The Centre for Rights Education and Awareness (CREAW) among other petitioners moved to the High Court challenging the legality of the County Commissioner appointments.
The Court of Appeal continues to state, in its summary judgment, that at the time President Kibaki made the appointments, he was not required to adhere to the one-third gender principle outlined in Article 27 of the Constitution.
“Given that President Kibaki acted under provisions of the former Constitution, Article 10 on National values and principles of governance and Article 27 on equality and freedom from discrimination of the new Constitution did not apply to appointments and/or deployments made pursuant to the provisions of the former Constitution,” the summary judgement continues.
CREAW and six other petitioners that included the Coalition of Violence Against Women had argued that by hiring 37 male commissioners and 10 female commissioners, President Kibaki flouted Article 27 of the Constitution which states, “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.”
The Court of Appeal further states that it was President Kibaki’s duty to appoint County Commissioners in order to ensure smooth co-ordination of national government affairs in the face of devolution.
“Under Article six of the new Constitution President Kibaki was obligated to ensure that the services offered by the Provincial Administration were devolved to the 47 Counties pending the enactment of legislation to provide for restructuring of the Provincial Administration in accordance with Section 17 of the Sixth Schedule of the new Constitution,” the judgement reads.
The Ministry of Internal Security and Provincial Administration, of which Iringo was Permanent Secretary at the time, was also justified in filing the appeal given the Attorney General’s hesitance to do so the Court of Appeal has ruled.
“In view of the apparent refusal by the Attorney General to lodge an appeal on behalf of the aggrieved Minister – the basis of which he did not furnish to the Court of Appeal – the minister lawfully appointed the law firm of Kinoti and Kibe Co. Advocates to file and prosecute the Appeal against the High Court Judgement,” the summary judgement reads.
President Kibaki was obligated to ensure that the services offered by the Provincial Administration were devolved to the 47 Counties pending the enactment of legislation to provide for restructuring of the Provincial Administration.
Any outstanding disputes surrounding the appointment of County Commissioners, the judgement concludes, should be resolved through the mechanism laid out in the National Government Coordination Act 2013.
Section 19 of the Act states, “Where a dispute arises as to the mandate or powers of any of the officers, or roles of respective officers of the county governments and those of the national government, a mediation team shall be constituted to deal with the dispute.”