Lsk vs national assembly by TI- Kenya

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 281 OF 2013 IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA AND IN THE MATTER OF ARTICLES NOS. 2, 3, 93, 94, 95, 122, 127, 156, 159, 165, 206, 207, 223, 226, 230, 249, 259, 251, 260 and 116

AND IN THE MATTER OF THE NATIONAL ASSEMBLY REMUNERATION ACT, THE PARLIAMENTARY SERVICE COMMISSION ACT, THE SALARIES AND REMUNERATION COMMISSION ACT 2011, THE PARLIAMENTARY PENSIONS ACT, THE APPROPRIATIONS ACT, THE SUPPLEMENTARY APPROPRIATIONS ACT NO. 3 OF 2013, THE STATUTORY INSTRUMENTS ACT 2013 AND OTHER RELEVANT LEGISLATION AND IN THE MATTER OF THE NATIONAL ASSEMBLY OF KENYA, THE SALARIES AND REMUNERATIONS COMMISSION, THE CONTROLLER OF BUDGET AND THE CONSTITUTION OF KENYA AND EXECUTIVE AUTHORITY OF THE PRESIDENT OF THE REPUBLIC OF KENYA AND IN THE MATTER OF THE PURPORTED NULLIFICATION OF GAZETTE NOTICES NOS. 2885, 2886, 2887, 2888 DATED 1/3/2013 BY THE NATIONAL ASSEMBLY AND IN THE MATTER OF THE ILLEGAL AND UNCONSTITUTIONAL REFUSAL BY THE PARLIAMENTARY SERVICE COMMISSION AND THE SPEAKER OF THE NATIONAL ASSEMBLY TO ENFORCE GAZETTE NOTICES NOS. 2885, 2886, 2887, 2888 DATED 1/3/2013 AND PAY SALARIES TO MEMBERS OF THE NATIONAL ASSEMBLY AS PRESCRIBED THEREIN AND IN THE MATTER OF THE INCOMPETENT, ILLEGAL AND UNCONSTITUTIONAL PETITION FOR THE REMOVAL FROM OFFICE OF THE CHAIRPERSON AND COMMISSIONERS OF THE SALARIES AND REMUNERATION COMMISSION

The Petitioner is a statutory body incorporated under the Provisions of the Law Society of Kenya Act Chapter 18 of The Laws of Kenya. The Petitioner is a professional body charged with the responsibility of overseeing the practice of law in Kenya. It is in particular mandated to advise the public and Government in respect of legal and constitutional matters. Following the passage of the current constitution the Petitioner has vigorously exercised this mandate to assist the country in the proper implementation of the constitution. It brings these proceedings in the exercise of such mandate. Its address for service for the purpose of these proceedings is c/o NZAMBA KITONGA, ADVOCATES, JUBILEE INSURANCE EXCHANGE, KAUNDA STREET, P. O. BOX 60102 – 00200, NAIROBI.

The 1st Respondent is the National Assembly of the Republic of Kenya established under Articles 93 of the Constitution of Kenya. Its address is c/o The Clerk, National Assembly of Kenya, Parliament Buildings, Parliament Road, P. O. Box 41842 - 00100 Nairobi. (Service should be effected through the Petitioner’s advocate’s office).

The 2nd Respondent is The Parliamentary Service Commission established under Article 127 of the Constitution of Kenya. Its address is c/o The Secretary, Parliamentary Service Commission, Parliament Buildings, Parliament Road,, P. O. Box 41842 – 00100, Nairobi. (Service should be effected through the Petitioner’s advocate’s office).

The 3rd Respondent is the Hon. The Speaker of The National Assembly of Kenya. His address is c/o The National Assembly, Parliament Buildings, Parliament road, P. O.

Box 41842 – 00100, Nairobi. (Service should be effected through the Petitioner’s advocate’s office). 5.

The 4th Respondent is the Hon. The Attorney-General of The Republic of Kenya who is sued for and on behalf of the Government of the Republic of Kenya for the enforcement of all the orders made herein by all departments, agencies, institutions and other organs of the Government of Kenya. His address is c/o The AttorneyGeneral’s Chambers, State Law Offices, Sheria House, P. O. Box 40112, Nairobi. (Service should be effected through the Petitioner’s advocate’s office).

The 5th Respondent is The Salaries and Remuneration Commission established under Article 230 of The Constitution of Kenya. Its address is Williamson House, 4th Ngong Avenue, P. O. Box 43126 – 00100, Nairobi. (Service should be effected through the Petitioner’s advocate’s office).

The 6th Respondent is The Controller of Budget established under Article 228 of The Constitution of Kenya. Its address is Bima House, Harambee Avenue, P. O. Box 30002 Nairobi. (Service should be effected through the Petitioner’s advocate’s office).

FACTS/GROUNDS OF THE PETITION 1.

THAT One of the grievances in the clamour for a new constitution was the fact that successive National Assemblies in the country had abused their office and legislative authority to pursue the singular, selfish and greedy motive of increasing their salaries, other remuneration and perks.

THAT the consequence was that the new constitution created The Salaries and Remuneration Commission under Article 230 and gave it the sole and singular authority to set and review the remuneration and benefits of all state officers.

THAT under Article 260 of the said constitution all members of The National Assembly and Senate are state officers whose salaries and remuneration should be determined by the said Commission, the 5th Respondent herein.

THAT in exercise of its aforesaid mandate the 5th Respondent set the salaries and benefits of various state officers and published them under Gazette Notices Nos. 2885,2886, 2887 and 2888 dated 1/3/2013. These comprise of the salaries and benefits of the President, The Deputy President, Senators, Governors and other state officers.

THAT at the material time members of the National Assembly had not been elected. They were subsequently elected and sworn into office and they thereby became subject to the prescribed salary aforesaid.

THAT thereafter some members of the National Assembly expressed dissatisfaction and disgruntlement with the said prescribed salary.

THAT one Hon. Mithika Linturi a member of the said Assembly for Igembe South being dissatisfied with the prescribed salary aforesaid presented a petition before the said Assembly seeking that the Chairperson and Members of the 5th Respondent be removed from their offices as Commissioners by asking the Assembly to pass a resolution requesting the President of the Republic of Kenya to constitute a Tribunal to investigate the conduct of the said Chairperson and Commissioners.

THAT the petition was expressed to have been presented pursuant to Article 251 of The Constitution of Kenya. The alleged grounds of misconduct of the said Chairperson and Commissioners were stated to be (i) serious violation of The Constitution; (ii) serious violation of The Law; (iii) gross misconduct in the performance of functions; (iv) incompetence.

THAT the petition is verbose and bellicose but its gist is that the Chairperson and Members of the 5th Respondent be removed from office because they have issued Gazette Notices which prescribes a salary which is not to the liking of Hon. Mithika Linturi and some Members of the National Assembly.

10.

THAT the petition is misconceived and misguided because the constitution does not mandate that the salaries set by the Commission must be to the liking of members of the National Assembly or any other body.

11.

THAT the petition is unconstitutional and null and void ab initio at law in that the Chairperson and the Commissioners cannot be removed from office for making a decision which is unpleasant to Members of the National Assembly. The grounds of removal contemplated under Article 251 of the Constitution relate to misconduct if questions of personal integrity, corruption, criminal conduct or immorality of the Commissioners arise.

12.

THAT pursuant to the filing of the said petition by Hon. Mithika Linturi the Committee on Delegated Legislation of the National Assembly decided to look into the constitutionality of Gazette Notices Nos. 2885,2886, 2887 and 2888 dated 1/3/2013 issued by the 5th Respondent.

13.

THAT on 28/5/2013 the said Committee presented its report before the National Assembly in which the said Committee recommended that the said Gazette Notices were unconstitutional, unlawful, ultravires and therefore null and void.

14.

THAT the Committee further recommended that the remuneration of members of parliament be governed by the National Assembly Remuneration At and The Parliamentary Pensions Act.

15.

THAT the Committee also recommended that the conduct of inter-alia the Chairperson and Commissioners of the 5th Respondent be investigated.

16.

THAT on 28/5/2013 under motion No. 8 of its business the National Assembly adopted the report of the said Committee and thereafter the Clerk to the National Assembly issued what he described as Certificate of Nullification of Gazette Notices Nos. 2885, 2886, 2887, 2888 DATED 1/3/2013. This document is not known to law and has no legal effect.

17.

THAT the report of the said Committee and its subsequent adoption by the National Assembly and the said certificate were unconstitutional, unlawful and null and void ab-initio because the National Assembly has no power to nullify the decisions and Gazette Notices of the 5th Respondent or to determine the salary of its members and the legislation governing the said salaries.

18.

THAT in any case Gazette Notices do not in themselves constitute the decision of the 5th Respondent. They are merely a public communication of such decision.

19.

THAT the provisions of the National Assembly Remuneration Act and Parliamentary Pensions Act which allegedly govern the remuneration of members of parliament have long been overtaken by events with the passing of the new Constitution which shifted the mandate of setting the remuneration to the 5 th Respondent. Accordingly to the extent that the said provisions are in conflict and inconsistent with the Constitution and Article 230 thereof they are null and void.

20.

THAT the Statutory Instruments Act 2013 which was also used to justify the illegal and unconstitutional decisions of the 1st Respondent is also irrelevant and unconstitutional to the extent that an Act of Parliament cannot interfere with the independence and powers of constitutional bodies.

21.

THAT for all purpose of intents therefore the petition, the Committee Report, the motion, its adoption and all actions that have been taken thereon by the National Assembly are misguided, unconstitutional and therefore null and void.

22.

THAT the Hon. The Speaker of the house has failed, refused and/or neglected to perform his constitutional responsibility of giving constitutional guidance to the house in that:PARTICULARS

He has wrongfully assumed the role of a trade unionist by leading the agitation for increased salaries and the defiance of the Constitution and the law by Members of the National Assembly.

He has made pronouncements to the effect that the actions and Gazette Notices issued by the 5th Respondent are illegal, unconstitutional and of no consequence.

He announced that he and the Parliamentary Service Commission will take steps to annul the said Gazette Notices and to pay members of the National Assembly a different salary scale.

He has initiated, allowed and/or permitted the National Assembly and its Delegated Legislation Committee to undertake an illegal exercise of purportedly setting aside the said Gazette Notices and determining, prescribing, and paying its salary.

He has incited, allowed and/or permitted the National Assembly to be the judge, prosecutor, and executioner in its own cause and over the 5 th Respondent.

23.

THAT the 2nd Respondent has no constitutional and or legal mandate to prescribe the salaries and remuneration of members of parliament. It can only enforce the Gazette Notices issued by the 5th Respondent.

24.

THAT illegally and in violation of its constitutional mandate the 2nd Respondent is bent on enforcing the illegal and unconstitutional decisions, resolutions, motions and other proceedings of the 1st Respondent and in particular the said adopted motion No. 8 dated 28/5/2013.

25.

THAT the 1st Respondent has abused its powers and inserted in the 2013/2014 financial estimates provisions for monies to be expended for the payment of the increased none-existent salaries of its members.

26.

THAT the 4th Respondent is constitutionally mandated to advise the Government and the President on the correct legal and constitutional position. However the 4th Respondent has maintained a studious silence and has thereby by omission permitted the perpetuation of unconstitutional actions and illegalities by the 1st, 2nd and 3rd Respondents.

27.

THAT in addition the 4th Respondent has failed, refused and/or neglected to advise His Excellency The President of the Republic to issue a written decision under Seal

under Article 135 of the Constitution prohibiting all Government institutions, officers and state organs from enforcing the decisions of the 1st, 2nd and 3rd Respondents the subject matter hereof. 28.

THAT the 6th Respondent has the sole constitutional responsibility and authority of authorizing any payment from the consolidated fund. The Petitioner pleads that the 6th Respondent has the duty to publicly undertake not to sanction any payment to members of parliament other than that prescribed by Gazette Notices Nos. 2885,2886, 2887 and 2888 dated 1/3/2013 issued by the 5th Respondent.

29.

QUESTIONS AND PROPOSITIONS FOR INTERPRETATION AND DETERMINATION BY THE HONOURABLE COURT____________ THAT by virtue of the premises aforesaid the Petitioner avers that the following matters require the interpretation, determination and/or direction by this Honourable Court to wit:a)

Either by accident or design a conflict has arisen in the interpretation, enforcement and/or implementation of the constitution particularly with respect to Articles 2, 3, 93, 94, 95, 122, 127, 156, 159, 165, 206, 207, 223, 226, 230, 249, 259, 251, 260 and 116.

In furtherance of their illegal objectives the 1st, 2nd and 3rd Respondents have purported that there is a conflict between the constitutional powers of the 5 th Respondent as conferred by Article 230 and the Salaries and Remuneration Act 2011 as against the National Assembly Remuneration Act, The Parliamentary Pensions Act, The Appropriations Act No. 3 of 2013, the Statutory Instruments Act 2013 and other relevant statutes.

The 1st, 2nd and 3rd Respondents are undertaking Resolutions, Motions, actions culminating in decisions that are contrary to the express letter, spirit and intent of the constitution and which are in consequence null and void ab initio.

The activities of the1st, 2nd and 3rd Respondents threaten to derail and imperil the process of implementing the constitution.

The 4th Respondent needs to be directed by this Honourable Court to uphold and enforce his constitutional mandates under Article 156 of the Constitution of Kenya.

The 5th and 6th Respondents require the direction of this Honourable Court in the performance and enforcement of their constitutional mandates under Articles 228 and 230 of the Constitution of Kenya

THAT the Petitioner further pleads that this is a fit and proper case for a determination under Article 2 of the constitution of Kenya that the provisions of the constitution herein shall prevail in the event of any conflict between itself and any written law, regulation, action and/or decision.

JURISDICTION 30.

The Petitioner avers that this Honourable Court under Article 165 of the Constitution of Kenya is vested with the jurisdiction to hear any determine, any question or matter where it is alleged that any law, decision or the exercise of authority is inconsistent or in contravention with the said constitution.

31.

The Petitioner pleads that by virtue of the premises aforesaid there is disclosed a cause of action within the jurisdiction of this Honourable Court. There are no other proceedings in respect of the subject matter hereof between the Petitioner and the Respondents in this Honourable Court or in any other court.

REASONS WHEREFORE the Petitioner prays for:(a)

A Declaration that the report of the Committee of the 1 st Respondent on Delegated Legislation dated 23/5/2013 and the Motion No. 8 adopting it by the 1 st Respondent dated 28/5/2013 seeking to investigate the conduct of the Chairperson and Commissioners of the Salaries and Remuneration Commission are illegal, wrong, unlawful, contrary to the Constitution of Kenya and are therefore null and void abinitio.

(b)

A Declaration that the report of the Committee of the 1st Respondent on Delegated Legislation dated 23/5/2013 and the Motion No. 8 of the 1st Respondent dated 28/5/2013 adopting the said report and the Nullification Certificate declaring Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 as unconstitutional, unlawful, ultravires is unconstitutional, unlawfull and therefore null and void.

(c)

A Declaration that Articles 2, 3, 93, 94, 95, 122, 127, 156, 159, 165, 206, 207, 223, 226, 230, 249, 259, 251, 260 and 116 of the Constitution being part of the Constitution constitute the Supreme law of this country and any conflict and/or inconsistency between them and any of the Provisions of The National Assembly Remunerations Act, The Parliamentary Pensions Act, The Appropriations Act, The Supplementary Appropriations Act 2013, The Statutory Instruments Act 2013 and any actions taken thereunder are null and void to the extent of such conflict or inconsistency.

(d)

A Declaration that Gazette Notices Nos. 2885,2886, 2887 and 2888 dated 1/3/2013 issued by the 5th Respondent complies with the Constitution of Kenya and is therefore lawful, constitutional and binding and must be enforced by the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents.

(e)

A conservatory and/or a perpetual order of injunction permanently restraining the 1st, 2nd 3rd, 4th, 5th and 6th Respondents by themselves, their agents, servants and/or employees from enforcing Motion No. 8 dated 28/5/2013 of the 1 st Respondent which adopted the report of its Committee on Delegated Legislation dated 23/5/2013 seeking to investigate the conduct of the Chairperson and Commissioners of the Salaries and Remuneration Commission.

A conservatory and/or perpetual order of injunction permanently restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents by themselves, their agents, servants and/or employees from enforcing Motion No. 8 and Certificate of Nullification dated 28/5/2013 in which the 1st Respondent adopted the report of its Committee on Delegated Legislation dated 23/5/2013 declaring Gazette Notices Nos. 2885,2886, 2887 and 2888 dated 1/3/2013 unconstitutional, unlawful, ultravires and null and void.

A conservatory or mandatory order of injunction directing the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents by themselves, their agents, servants and/or employees to forthwith enforce Gazette Notices Nos. 2885,2886, 2887 and 2888 dated 1/3/2013 and No. 3143 dated 8/3/2013 issued by the 5th Respondent and pay Members of the National Assembly their salaries in accordance therewith.

Any other relief that this Honourable Court may deem fit and just to grant.

The 1st, 2nd and 3rd Respondents be condemned to pay the costs of this petition.

DATED AT NAIROBI this

day of

APOLLO MBOYA FOR AND ON BEHALF OF THE LAW SOCIETY OF KENYA, THE PETITIONER DRAWN AND FILED BY Nzamba Kitonga Advocates Jubilee Insurance Exchange Kaunda Street P.O. Box 60102 â&#x20AC;&#x201C; 00200 E-mail: law@iconnect.co.ke NAIROBI

2013

TO BE SERVED UPON 1. The National Assembly of The Republic of Kenya Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 2. The Parliamentary Service Commission National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 3. The Speaker of the National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 4. The Hon. The Attorney-General Attorney-General’s Chambers State Law Offices Sheria House P. O. Box 40112 NAIROBI 5. The Salaries and Remuneration Commission 6th Floor – Williamson House 4th Ngong Avenue P.O. Box 43126 – 00100 NAIROBI 6. The Controller of Budget 12th Floor Bima House Harambee Avenue P.O. Box 30002 NAIROBI (Service through the Petitioner’s Advocate’s office)

THAT I am the Secretary of the applicant herein and I am duly authorized to swear this affidavit on its behalf.

THAT the applicant is a public body established under provisions of the Law Society of Kenya Act Chapter 18 of The Laws of Kenya.

THAT under Section 4 of the said Act the applicant is mandated to advise the public and the Government on legal and Constitutional matters.

THAT pursuant to this mandate the applicant has been monitoring and assisting the Government and the public in the process of the implementation of the Constitution.

THAT accordingly the applicant has followed with keen interest the controversy surrounding the publication of Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 issued by the 5th Respondent herein.

THAT the applicant through its Council is of the view that the actions contemplated or undertaken by the 1st, 2nd and 3rd respondents in a bid to nullify the said Gazette Notice and to remove the Chairperson and Commissioners of the 5th respondent from office contravene Articles 2, 3, 93, 94, 95, 122, 127, 156, 159, 165, 206, 207, 223, 226, 230, 249, 259, 251, 260 and 116 of the Constitution and are therefore wrongful, illegal, unlawful, unconstitutional and null and void ab-initio.

THAT the 1st, 2nd and 3rd respondents have presumed a none-existent conflict between the constitution and the National Assembly Remuneration Act, The Parliamentary Pensions Act and the Appropriations Statutes.

THAT in the circumstances the applicant is of the view that these are matters which require the urgent intervention and the interpretation of this Honourable Court.

THAT in the circumstances I confirm the contents of paragraphs 1 â&#x20AC;&#x201C; 23 of the petition filed herein to be true.

10.

THAT I also confirm that there are no other proceedings relating to the subject matter hereof between the applicant and the respondents herein in this court or in any other court.

11.

THAT the other respondents are enjoined to secure the proper enforcement of any court orders made herein.

12.

THAT I make this affidavit in support of the petition filed herein and the matters deponed hereinabove are true to the best of my knowledge save as to matters deponed to on belief and information the sources whereof are herein disclosed.

SWORN AT NAIROBI by the said APOLLO MBOYA This day of BEFORE ME

COMMISSIONER FOR OATHS

DRAWN AND FILED BY Nzamba Kitonga Advocates Jubilee Insurance Exchange Kaunda Street P.O. Box 60102 â&#x20AC;&#x201C; 00200 E-mail: law@iconnect.co.ke NAIROBI

) ) 2013 ) ) ) ) ) ) )

BETWEEN THE LAW SOCIETY OF KENYA………………………………………………………….PETITIONER -VERSUS1. THE NATIONAL ASSEMBLY OF THE REPUBLIC OF KENYA……………….1ST RESPONDENT 2. THE PARLIAMENTARY SERVICE COMMISSION……………………………2ND RESPONDENT 3. THE SPEAKER OF THE NATIONAL ASSEMBLY………………………………3RD RESPONDENT 4. THE HON. THE ATTORNEY-GENERAL………………………………………..4TH RESPONDENT 5. THE SALARIES AND REMUNERATION COMMISSION……………………….5TH RESPONDENT 6. THE CONTROLLER OF BUDGET…………..……………………………………6TH RESPONDENT NOTICE OF MOTION (Under Section 7, 8, 10 and 20 of Legal Notice No. 6 of 2006, Order 50 Rule 1 Of the Civil Procedure Rules, Section 3A of the Civil Procedure Act And Articles 2, 3, 93, 94, 95, 122, 127, 159, 165, 206, 207, 228, 230 and Other relevant articles of the Constitution of Kenya) TAKE NOTICE that this Honourable Court will be moved on the day of 2013 at 9.00 O’clock in the forenoon or soon thereafter as may be convenient as counsel for the ex-parte Applicant may be heard on an application FOR ORDERS:1.

THAT the service of this application be dispensed with in the first instance.

THAT this application be certified as urgent and be heard ex-parte in the first instance.

THAT by way of a temporary order of injunction and/or conservatory order the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents be restrained by themselves, their agents, servants and/or employees from enforcing the Nullification Certificate dated 28/5/2013 issued pursuant to Motion No. 8 of the 1st Respondent dated 28/5/2013 in which it adopted the report of its Committee of Delegated Legislation dated 23/5/2013 declaring Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 issued by the 5th Respondent unconstitutional, unlawful, ultravires and null and void pending the hearing and determination of the petition herein.

THAT by way of a temporary injunction and/or conservatory orders the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents herein by themselves, their agents and or employees be restrained from enforcing Motion No. 8 of the 1st Respondent dated 28/5/2013 in which it adopted the report of its Committee on Delegated Legislation dated 23/5/2013 recommending that the salaries and remuneration of members of the 1st Respondent be paid in accordance with the National Assembly Remuneration Act and The Parliamentary Pensions Act pending the hearing and determination of the petition herein.

THAT by way of a temporary injunction and/or conservatory orders the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents by themselves, their agents, servants and/or employees be restrained from enforcing Motion No. 8 of the 1st Respondent dated 28/5/2013 in which it adopted the report of its Committee on Delegated Legislation dated 23/5/2013 recommending that the conduct of the Chairperson and other Commissioners of the Salaries and Remuneration Commission be reviewed pending the hearing and determination of the petition herein.

THAT by way of a temporary injunction and/or conservatory orders the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents herein by themselves, their agents and or employees be restrained from enforcing Motion No. 8 of the 1st Respondent dated 28/5/2013 in which it adopted the report of its Committee on Delegated Legislation dated 23/5/2013 recommending that the salaries and remuneration of members of the 1st Respondent be paid in accordance with the National Assembly Remunerations Act and The Parliamentary Pensions Act pending the hearing and determination of this application inter-parties.

THAT by way of conservatory orders the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents pay salaries and allowances of members of the National Assembly and all state officers in accordance with Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 pending the hearing and determination of this petition herein.

10.

THAT by way of conservatory orders the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents pay the salaries and allowances of members of the National Assembly and all state officers in accordance with Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 pending the hearing and determination of this application inter-parties.

11.

THAT other appropriate orders be made.

12.

THAT the 1st, 2nd and 3rd Respondents be condemned to pay the costs of this application.

ON THE GROUNDS: 1.

THAT the said motion, report and/or decisions contained therein are illegal, wrong and unlawful.

THAT the said motion, report and/or decisions are in flagrant violation of the tenor, letter, spirit and intent of the Constitution of Kenya.

THAT the 1st, 2nd and 3rd Respondents have proclaimed themselves the judge, prosecutor and executioner in their own cause.

THAT the 1st, 2nd and 3rd Respondents have become a rogue parliament and have tarnished, trivialized and undermined the Constitution of Kenya.

THAT there is a real and grave danger that the illegal actions of the 1st, 2nd and 3rd Respondents unless stopped forthwith will result in the colossal theft and loss of public funds.

THAT the amounts involved are so massive that they cannot be recovered from the 1st, 2nd and 3rd Respondents and these proceedings may thereby be rendered nugatory.

THAT the motion, report and decision if implemented would mean that the President, the Deputy President, Cabinet Secretaries, Principal Secretaries, Governors, Deputy Governors, County Executive Committee Members, County Assembly Speakers, County Assembly Members, Chairpersons and Commissioners of Constitutional Commissions, Independent Office Holders and other state officers would not be paid their salaries and benefits in the absence of a legal mechanism.

THAT therefore the said motion if enforced will create a needless constitutional crisis.

THIS APPLICATION is based upon the grounds aforesaid, the affidavit of APOLLO MBOYA sworn on behalf of the applicant herein and/or such further grounds and reasons to be adduced at the hearing hereof. DATED AT NAIROBI this

day of

NZAMBA KITONGA ADVOCATES FOR THE APPLICANT/PETITIONER

2013

DRAWN AND FILED BY Nzamba Kitonga Advocates Jubilee Insurance Exchange, Kaunda Street P.O. Box 60102 – 00200 E-mail: law@iconnect.co.ke NAIROBI TO BE SERVED UPON 1. The National Assembly of The Republic of Kenya Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 2. The Parliamentary Service Commission National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 3. The Speaker of the National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 4. The Hon. The Attorney-General Attorney-General’s Chambers State Law Offices Sheria House P. O. Box 40112 NAIROBI 5. The Salaries and Remuneration Commission 6th Floor – Williamson House 4th Ngong Avenue P.O. Box 43126 – 00100 NAIROBI 6. The Controller of Budget 12th Floor, Bima House Harambee Avenue P.O. Box 30002 NAIROBI NB: If any party served does not appear at the place and time abovementioned such order will be made and proceedings taken as the court may think just and expedient

THAT I am the Secretary of the applicant herein and I am duly authorized to swear this affidavit on its behalf.

THAT the applicant is established under the Law Society of Kenya Act and under Section 4 of the said Act it is duly mandated to advise the public and the Government of the Republic of Kenya on legal and Constitutional matters.

THAT as a consequence of this mandate the applicant has been involved in assisting Kenyans and the Government in the process of implementing the Kenya Constitution which was promulgated in 2010.

THAT as a result thereof the applicant has keenly been following the controversy ignited by members of the 1st, 2nd and 3rd Respondents in pursuit of their self proclaimed power to increase their salaries.

THAT in this regard the said respondents have entertained a petition by one Honourable Mithika Linturi purportedly to remove the Chairperson and Commissioners of the 5th respondent from office for alleged misconduct.

THAT the alleged misconduct is the publication by the 5th Respondent of Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 which set the salaries of interalia members of the 1st Respondent. Members of the 1st respondent were not happy with the said salaries and they have consequently set out to punish and teach the Chairperson and Commissioners of the 5th respondent a lesson.

THAT historically Members of the 1st Respondent had notoriously developed the habit of determining their own salaries.

THAT the culmination of this greed and avarice was reflected in the 10th parliament which priced itself beyond the imagination and ability of Kenyans.

THAT consequently the new constitution sought to stop this culture of avarice and greed by creating the 5th Respondent under Section 230 thereof and giving it the sole mandate to the exclusion of any other person or authority to determine the salaries of all state officers including members of the 1st respondent.

10.

THAT members of the 1st respondent in defiance of this constitutional decree have set in place various measures aimed at determining their own higher salaries.

11.

THAT the 3rd Respondentâ&#x20AC;&#x2122;s role is to ordinarily guide the 1st respondent in protecting, upholding and adhering to the constitution.

12.

THAT however the 3rd Respondent has abrogated his constitutional responsibility and turned himself into a trade unionist in defiance of the constitution.

13.

THAT the 2nd Respondent under the leadership of the 3rd Respondent will be used to enforce the said illegal schemes of paying self-determined salaries of Members of the 1st Respondent.

14.

THAT in their scheme to initiate the removal from office of the Chairperson and Commissioners of the 5th Respondent the 1st, 2nd and 3rd Respondents have become the Judge, the prosecutor and the executioner in their own cause which is forbidden by the Constitution.

15.

THAT the said Respondents have also initiated proposals or are likely to pass proceedings, motions, resolutions and/or decisions to determine and payout their own salaries. These are high crimes and a flagrant abuse and misuse of office and a negation of the constitution.

16.

THAT on 28/5/2013 in a brazen attempt to sabotage and undermine the Constitution members of the 1st Respondent passed a Motion No. 8 dated 28/5/2013 in which they adopted the Report of the Committee on Delegated Legislation dated 23/5/2013. The said Committee had declared that Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 and issued by the 5th Respondent were unconstitutional, unlawful, ultravires and null and void. In furtherance thereof the Clerk of the 1st Respondent on the same date then issued a document which he described as Certificate of Nullification of the said Gazette Notices. This document is not known to law and is of no legal consequence.

17.

THAT according to them this action would revive the payment of salaries and allowances to them under the old provisions of The National Assembly

Remunerations Act, The Parliamentary Pensions Act and the Appropriations Statutes. However, unknown to them the provisions of these statutes and other statutes which conflict with or are inconsistent with the Constitution have become obsolete and spent. 18.

THAT if the motion/decision is enforced it will result in the theft and defrauding of public funds constituting theft by servant or agent.

19.

THAT in the same report dated 23/5/2013 and the subsequently adopted Motion No. 8 dated 28/5/2013 the 1st Respondent decided that the conduct of the Chairperson and Commissioners of the 5th Respondent be reviewed because of deciding that members of the 1st Respondent be paid salaries and benefits which are not their liking.

20.

THAT this decision represents a gross abuse of office and is unconstitutional. The Chairperson and Commissioners of the 5th respondent under the Constitution can only be investigated in connection with questions of personal misconduct, integrity, corruption or criminal conduct. They cannot be “reviewed” for performing their duties.

21.

THAT members of the 1st Respondent ought to know that in determining their salaries and benefits its officials and members were consulted and there was a public participatory process.

22.

THAT in fact at the 5th Respondent’s various consultative forums the 1st Respondent was represented by:a) b) c) d)

Mr. Jeremiah M. Nyegenye – The current Clerk of the Senate Mr. Justin Bundi – The current Clerk of the National Assembly Mr. Anthony Njoroge – Parliamentary Counsel Mr. Clement Nyadere – Director, Parliament

I annex hereto in bundle and marked “AM-1 (a) – (d)” their respective registration forms. 23.

THAT I annex hereto marked “AM-2” a sample of reports and attendance in sheets to demonstrate that the 5th Respondent conducted public consultative forums. The entire bundle in respect of all the forums is available at our secretariat.

24.

THAT thereafter the Chairperson and Commissioners of the 5th Respondent deliberated and made resolutions determining the different salaries and benefits of all state officers.

25.

THAT the 5th Respondent prepared a report showing the basis of its findings. I annex hereto a copy of the said report marked “AM-3”.

26.

THAT the 5th Respondent also received various communication from Hon. Kenneth O. Marende M.P. the former Speaker of the National Assembly. This communication is part of the appendix to the Report of the Committee on Delegated Legislation dated 23/5/2013.

27.

THAT it is therefore obvious that the 5th Respondent undertook widespread public and stakeholder consultations.

28.

THAT it is the sworn and solemn constitutional duty of the 4th Respondent to publicly advise the Government including the 1st, 2nd and 3rd Respondents that their activities are illegal and unconstitutional.

29.

THAT it is also the duty of the 4th Respondent to advise the President of the Republic of Kenya to make an Executive order under Section 135 of the Constitution of Kenya forbidding all public officers on the pain of punishment from enforcing any such self determination of salaries by the said respondents.

30.

THAT however the 4th Respondent has maintained a studious silence and has failed, refused and/or neglected to perform his constitutional duty.

31.

THAT the 6th Respondent has the constitutional authority to sanction any withdrawal of money from the consolidated fund and ought not to permit any such payment of selfdetermined salaries whether by omission, commission or inaction.

32.

THAT the 5th respondent must enforce its constitutional mandate and the said Gazette Notices even in the face of the hostile activities of the 1st, 2nd and 3rd Respondents.

33.

THAT as a result of the said illegal activities of the 1st, 2nd and 3rd Respondents the applicant in exercise of its legal mandate aforesaid wrote to the Respondents on 24/5/2013 advising that their actions are illegal and unconstitutional. I annex hereto a copy of the said letter marked “AM-4” and copies of the said Gazette Notices Nos. 2885, 2886, 2887 and 2888 dated 1/3/2013 marked “AM-5 (a) – (d)”.

34.

THAT on 22/5/2013 the 3rd Respondent wrote to the 5th Respondent erroneously purporting the salary “proposal” had now been “agreed” upon. The salary prescribed by the 5th Respondent was not a proposal requiring agreement from any person. It was a constitutional edict to be obeyed. Despite this members of the 1st Respondent went ahead and passed the said motion of 28/5/2013 adopting the report of the 1st Respondent’s Committee on Delegated legislation which report recommended the so called annulment of Gazette Notices Nos. 2885, 2886, 2887 and

2888 dated 1/3/2013. I annex hereto copies of the following documents marked “AM-6 (a) – (f)”:a) b) c) d) e) f)

The letter from the Speaker dated 22/5/2013; The reply of the Chairperson of the 5th Respondent dated 23/5/2013 The report of the Committee on Delegated Legislation; The motion to adopt the report; The petition filed by Hon. Mithika Linturi The Nullification Certificate dated 28/5/2013

35.

THAT evidently the 1st Respondent has become a rogue parliament, is intent on acting in an unconstitutional manner in disregard of articles 2, 3, 93, 94, 95, 122, 127, 156, 159, 165, 206, 207, 223, 226, 230, 249, 259, 251,260 and 116 of the constitution and other relevant articles.

36.

THAT it is therefore imperative that this Honourable court makes conservatory and restraining orders of injunction to stop the enforcement by the Respondents of its highly unconstitutional report, motion and/or decisions passed on 28/5/2013.

37.

THAT if such orders are not made the petition herein will be rendered nugatory.

38.

THAT the conservatory orders sought are in the public interest and are aimed at protecting public funds, preserving pubic order and protecting the Constitution of Kenya pending the interpretation and determination of this Honourable Court of the petition filed herein.

39.

THAT I make this affidavit in support of the said petition and the matters deponed hereinabove are true to the best of my knowledge save as to matters deponed to on belief and information the sources whereof are herein disclosed.

SWORN AT NAIROBI by the said APOLLO MBOYA This day of BEFORE ME

COMMISSIONER FOR OATHS

) ) 2013 ) ) ) ) ) ) )

DRAWN AND FILED BY Nzamba Kitonga Advocates Jubilee Insurance Exchange Kaunda Street P.O. Box 60102 â&#x20AC;&#x201C; 00200 E-mail: law@iconnect.co.ke NAIROBI

BETWEEN THE LAW SOCIETY OF KENYA………………………………………………………….PETITIONER -VERSUS1. THE NATIONAL ASSEMBLY OF THE REPUBLIC OF KENYA……………….1ST RESPONDENT 2. THE PARLIAMENTARY SERVICE COMMISSION……………………………2ND RESPONDENT 3. THE SPEAKER OF THE NATIONAL ASSEMBLY………………………………3RD RESPONDENT 4. THE HON. THE ATTORNEY-GENERAL………………………………………..4TH RESPONDENT 5. THE SALARIES AND REMUNERATION COMMISSION……………………….5TH RESPONDENT 6. THE CONTROLLER OF BUDGET…………..……………………………………6TH RESPONDENT CERTIFICATE OF URGENCY I, NZAMBA KITONGA ADVOCATE for the Applicant/Petitioner herein have been instructed that the 1st, 2nd and 3rd Respondents herein are undertaking proceedings, motions, resolutions and/or decisions to purportedly degazette Gazette Notices Nos. 2885,2886, 2887 and 2888 of 1/3/2013 issued by the 5th Respondent and to determine their own salaries. Inconsequence thereof I certify this to be an urgent application on the grounds:1.

THAT the said proceedings, motions and in particular motion No. 8 dated 28/5/2013, resolutions and/or decisions are illegal, wrong and unlawful.

THAT the said proceedings, motions and in particular motion No. 8 dated 28/5/2013, resolutions and/or decisions are in flagrant violation of the tenor, letter, spirit and intent of the Constitution of Kenya.

THAT the 1st, 2nd and 3rd Respondents have proclaimed themselves the judge, prosecutor and executioner in their own cause.

THAT the 1st, 2nd and 3rd Respondents have become a rogue parliament and have tarnished, trivialized and undermined the Constitution of Kenya.

THAT there is a real and grave danger that the illegal actions of 1st, 2nd and 3rd Respondents unless stopped forthwith will result in the colossal theft and loss of public funds.

THAT the amounts involved are so massive that they cannot be recovered from the 1st, 2nd and 3rd Respondents and these proceedings may thereby be rendered nugatory.

Commissions, Independent Office Holders and other state officers would not be paid their salaries and benefits in the absence of a legal mechanism. 8.

THAT therefore the said motion if enforced will create a needless constitutional crisis.

DATED AT NAIROBI this

day of

NZAMBA KITONGA ADVOCATES FOR THE APPLICANT/PETITIONER DRAWN AND FILED BY Nzamba Kitonga Advocates Jubilee Insurance Exchange Kaunda Street P.O. Box 60102 – 00200 E-mail: law@iconnect.co.ke NAIROBI TO BE SERVED UPON 1. The National Assembly of The Republic of Kenya Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 2. The Parliamentary Service Commission National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 3. The Speaker of the National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 4. The Hon. The Attorney-General Attorney-General’s Chambers State Law Offices Sheria House P. O. Box 40112 NAIROBI

2013

5. The Salaries and Remuneration Commission 6th Floor – Williamson House 4th Ngong Avenue P.O. Box 43126 – 00100 NAIROBI 6. The Controller of Budget 12th Floor, Bima House Harambee Avenue P.O. Box 30002 NAIROBI

BETWEEN THE LAW SOCIETY OF KENYA………………………………………………………….PETITIONER -VERSUS1. THE NATIONAL ASSEMBLY OF THE REPUBLIC OF KENYA……………….1ST RESPONDENT 2. THE PARLIAMENTARY SERVICE COMMISSION…………………………….2ND RESPONDENT 3. THE SPEAKER OF THE NATIONAL ASSEMBLY……………………………….3RD RESPONDENT 4. THE HON. THE ATTORNEY-GENERAL………………………………………..4TH RESPONDENT 5. THE SALARIES AND REMUNERATION COMMISSION……………………….5TH RESPONDENT 6. THE CONTROLLER OF BUDGET…………..……………………………………6TH RESPONDENT IN COURT ON THE 30TH DAY OF MAY 2013 BEFORE THE HON. MR. JUSTICE DAVID MAJANJA ORDER UPON READING the application presented to this Court on 30th May 2013 Under Section 7, 8, 10 and 20 of Legal Notice No. 6 of 2006, Order 50 Rule 1of the Civil Procedure Rules, Section 3A of the Civil Procedure Act And Articles 2, 3, 93, 94, 95, 122, 127, 159, 165, 206, 207, 228, 230 and Other relevant articles of the Constitution of Kenya and UPON READING the affidavits of APOLLO MBOYA sworn on 30th May 2013 AND UPON HEARING counsel for the Applicant/Petitioner ex-parte, IT IS HEREBY ORDERED: 1.

THAT Notice of this Petition to be advertised in a newspaper with national circulation.

THAT this matter be mentioned on 3/5/2013 and the Respondents be served.

GIVEN under my hand and the Seal of the Court at Nairobi this 30th May 2013 ISSUED AT NAIROBI this

day of

DEPUTY REGISTRAR HIGH COURT OF KENYA, NAIROBI

2013

BETWEEN THE LAW SOCIETY OF KENYA………………………………………………………….PETITIONER -VERSUS1. THE NATIONAL ASSEMBLY OF THE REPUBLIC OF KENYA……………….1ST RESPONDENT 2. THE PARLIAMENTARY SERVICE COMMISSION…………………………….2ND RESPONDENT 3. THE SPEAKER OF THE NATIONAL ASSEMBLY……………………………….3RD RESPONDENT 4. THE HON. THE ATTORNEY-GENERAL………………………………………..4TH RESPONDENT 5. THE SALARIES AND REMUNERATION COMMISSION……………………….5TH RESPONDENT 6. THE CONTROLLER OF BUDGET…………..……………………………………6TH RESPONDENT MENTION NOTICE To: 1. The National Assembly of The Republic of Kenya Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 2. The Parliamentary Service Commission National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 3. The Speaker of the National Assembly Parliament Buildings Parliament road P.O. Box 41842 – 00100 NAIROBI 4. The Hon. The Attorney-General Attorney-General’s Chambers State Law Offices Sheria House P. O. Box 40112 NAIROBI 5. The Salaries and Remuneration Commission 6th Floor – Williamson House 4th Ngong Avenue P.O. Box 43126 – 00100 NAIROBI 6. The Controller of Budget 12th Floor, Bima House

Harambee Avenue P.O. Box 30002 NAIROBI TAKE NOTICE that this petition has been set down for mention on the 31st day of May 2013 at 12.00 noon in the forenoon or soon thereafter as may be convenient. TAKE FURTHER NOTICE that in default of your attendance or anyone by law authorized to attend on your behalf, the same may be mentioned your absence notwithstanding. DATED AT NAIROBI this

day of

NZAMBA KITONGA ADVOCATES FOR THE APPLICANT/PETITIONER DRAWN AND FILED BY Nzamba Kitonga Advocates Jubilee Insurance Exchange Kaunda Street P.O. Box 60102 â&#x20AC;&#x201C; 00200 E-mail: law@iconnect.co.ke NAIROBI

2013