The promulgation of the Constitution in 2010 handed citizens new freedom to check the implementation of governments’ policies, management of projects, appointments in public institutions and in utilisation of resources. They do so through legal instruments such conservatory orders, injunctions, prohibitions and stays. Although these restraints have some positive effects, they have lately become counterproductive with heavy cost to the taxpayer.
Fortunately, the Supreme Court of Kenya ruling in the matter of Gatirau Munya vs. Mwenda Kithinji and two Others  issued an authoritative guide when it defined the purpose of conservatory orders. The Supreme Court held that “the purpose is to facilitate orderly functioning within public agencies as well as to uphold the adjudicatory authority of the Court in public interest.” The current trend where conservatory orders are often obtained ex-parte and extended indefinitely however brings to question whether the Supreme Court’s position is being respected because it denies fair hearing to the offended party.
Some legislations have become a limitation to implementation of good policies and this could be linked to the tight constitutional deadlines set for Parliament to pass laws activating the organs of government and institutions. The majority of legislations were given a deadline of one year which could explain the present hitches with implementation because their impact was not well evaluated. For example, the legal framework in the devolved system of government is a patchwork of legislation borrowed from other countries, especially South Africa and was never subjected to serious scrutiny locally. Only a few legislations such as the Chapters on Land and Environment, the Legislature were scrutinised over the maximum period of five years.
An example of how harmful conservatory orders hinder development was captured in a TV interview by the Machakos Governor, Alfred Mutua on October 2, 2019 where he recalled an order staying a proposal by his county to facilitate investors by allocating them commercial and industrial land. The order was lifted after about five years but not after one of the investors had pulled out. This scenario replicates across many counties with numerous projects stalled by injunctions and unresolved disputes.
The national government has too been affected by such orders which have delayed infrastructural developments. In case of the Standard Gauge Railway (SGR) project, a delay of about one year in the Ngong’ area may have caused taxpayers colossal penalties.
In the matter of China Road and Bridge Construction (K) Ltd vs. African Gas and Oil Company & three Others , China Road & Kenya Railways after filing an appeal, contended that conservatory orders were occasioning massive losses and unless stayed by the time appeal is heard and determined, a lot of damage will have been done.
The Court of Appeal observed “when confronted by an applicant such as the one before us, it must weigh the respective hardships that each party stands to suffer and the issue is not merely the ability of a party to pay or not to pay a particular sum of money.” Although a stay of the conservatory order was granted the applicant had lost five months of works. Such delays in construction contracts attract heavy penalties and interest because hired machinery, idle labour and consultancies are considered—inevitably escalating interest charge on local and foreign bank loans, and overdraft facilities. It may also lead to premature termination of donor-funded projects.
Such inconveniences have also been registered in appointment of office holders, bringing to the fore disparities and inconsistencies in orders given.
In Kiambu, for instance we have a Deputy Governor acting as a Governor in the absence of Governor who has been charged with criminal offences. One school of thought argue that Section 32(4) of the County Government Act 2012 seems to be inhibiting him from “acting” as a Governor in contravention of the Constitution. Another opines the article 179(5) of Constitution does not restrict the word “Acting” in any way. Section 32(4) has included provisions that restrict nomination, appointments and dismissal of the County Executive Committee members. This hinders the work of an acting governor contrary to the Constitution.
The matter of “acting” capacity has been interpreted in several cases in Kenya. In the matter of African Centre for International Youth Exchange & two Others vs. Ethics Anti-Corruption Commission & Another , the Court held that acting secretary may assume subject to law all functions of office until a substantive order is appointed.
A citizen of Kiambu is now seeking interpretation of Section 32(4) of the County Government Act No 17 of 2012 and wants it declared inconsistent with the provision of Article 179(5) of the Constitution of Kenya 2010. Section 32(4) which states that: “When acting as contemplated in Article 179(5) of the Constitution, the deputy governor shall not exercise any powers of the governor, to nominate, appoint or dismiss, that are assigned to the governor under the Constitution.” He wants the Attorney General compelled to advise relevant Government agencies to repeal Section 32(4). This should be of interest to the Council of Governors in relation to the position of deputy governors.
In public interest cases the applicants do not offer any securities to cover the losses incurred during the period of stay. Some of these litigants are proxies of parties without genuine interest in the socio-economic progress of the citizens. This may be attributable to poor legislation from Parliament and Counties Assembly or strict prescriptions by the donors.
It is essential to balance between public interest and the cost to the taxpayers. India with which we share common jurisprudence has injunction legislation which guide litigants.
The writers are advocates of the High Court of Kenya.