Republic v Cabinet Secretary Ministry of Water and Sanitation and Irrigation & 7 others Exparte Allan Kipruto Tuwei [2020] eKLR Case Summary

Court
High Court of Kenya at Eldoret
Category
Civil
Judge(s)
H.A. Omondi
Judgment Date
June 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the case summary of Republic v Cabinet Secretary Ministry of Water and Sanitation and Irrigation & 7 others Exparte Allan Kipruto Tuwei [2020] eKLR, focusing on key legal insights and implications in water governance.

Case Brief: Republic v Cabinet Secretary Ministry of Water and Sanitation and Irrigation & 7 others Exparte Allan Kipruto Tuwei [2020] eKLR

1. Case Information:
- Name of the Case: Allan Kipruto Tuwei v. The Cabinet Secretary Ministry of Water and Sanitation and Irrigation & Others
- Case Number: Judicial Review Cause No. 01 of 2020
- Court: High Court of Kenya at Eldoret
- Date Delivered: June 29, 2020
- Category of Law: Civil
- Judge(s): H.A. Omondi
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving several legal issues:
a) Whether the Cabinet Secretary was required to adhere strictly to constitutional provisions regarding gender representation in appointive bodies.
b) Whether the Cabinet Secretary complied with Section 66 of the Water Act No. 43 of 2016 in the appointments made.
c) Whether Section 66 of the Water Act allows for co-opting additional members under the State Corporations Act.
d) Whether the Board of the North Rift Valley Water Works Development Agency was legally constituted and if the Gazette Notice No. 2360 was proper.

3. Facts of the Case:
Allan Kipruto Tuwei, the ex parte applicant, challenged the appointment of the 3rd to 8th respondents as board members of the North Rift Valley Water Works Development Agency by the Cabinet Secretary for Water and Sanitation. The appointments were made on March 10, 2020, and published in Gazette Notice No. 2360 on March 20, 2020. Tuwei argued that the appointments breached Section 66 of the Water Act, which mandates that board members be drawn from counties within the basin area, which includes Turkana, West Pokot, Elgeyo Marakwet, and Uasin Gishu. He further claimed that the appointments did not comply with Article 27 of the Kenyan Constitution regarding gender representation.

4. Procedural History:
Tuwei filed a Judicial Review Motion seeking orders of certiorari and prohibition against the Cabinet Secretary and the appointed board members. The respondents, including the Cabinet Secretary and the appointed members, contested the claims, arguing that the appointments were lawful and within the Cabinet Secretary's discretion. The Attorney General did not enter an appearance on behalf of the respondents. The court considered various affidavits and legal arguments presented by both parties.

5. Analysis:
- Rules: The court analyzed the relevant statutes, including Articles 27 and 47 of the Constitution of Kenya, Section 66 of the Water Act No. 43 of 2016, and the Law Reform Act, which govern appointments to public bodies and the requirements for fair administrative action.

- Case Law: The court referenced prior cases, including Advisory Opinion No. 2 of 2012 and the cases of FIDA-K & Others v. Attorney General and Centre for Rights Education and Awareness v. Attorney General, which emphasized the importance of gender representation and fair administrative processes in appointive bodies.

- Application: The court determined that the appointments violated both the constitutional gender representation requirement and the statutory provision mandating local representation from the basin area. The lack of a competitive recruitment process for the board members further compounded the illegality of the appointments.

6. Conclusion:
The court ruled in favor of the ex parte applicant, granting an order of certiorari to quash the appointments made by the Cabinet Secretary and prohibiting the appointed members from assuming office or engaging in any activities related to the agency. The decision underscored the importance of compliance with constitutional and statutory provisions in public appointments.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The High Court of Kenya ruled that the Cabinet Secretary's appointments to the North Rift Valley Water Works Development Agency were unlawful due to non-compliance with both constitutional and statutory requirements regarding gender representation and local membership. This case highlights the necessity for adherence to legal frameworks in public appointments and the court's role in upholding constitutional principles.

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