- Justice Mwanaisha Shariff said the exercise was conducted in an effective and constitutionally compliant manner.
- It was published on December 9, 2022, by the House Clerk of in the local dailies inviting submission of memoranda by the public.
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The High Court has allowed the Parliament to proceed with the Affordable Housing Bill after dismissing a petition challenging the conduct of public participation in the same.
The Kisumu court said the petition was premature noting that it had assumed that the National Assembly intended to conduct the exercise through one mode, that is through submission of memoranda.
Justice Mwanaisha Shariff said the same was conducted in an effective and constitutionally compliant manner.
"It is now evident that this petition does not fall in the pigeonhole of exceptions to the general rule that courts will not interfere with the legislative making process and this court is thus disinclined to accept the Petitioner's invitation for a recall of the notice issued by the Clerk of the 3rd Respondent on December 9, 2023, by way of an order of mandamus," she ruled.
Lawrence Apiyo had moved to the High Court in Kisumu suing the Attorney General, Cabinet Secretary for Housing and Urban Settlement, and the National Assembly.
He sought a declaration that the rushing of the Affordable Housing Bill, 2023 without adequate and effective public participation and considering the special needs of the marginalised is unlawful and unconstitutional for failure to comply with the requirement of public participation and protection of marginalised.
Apiyo argued that the methodology was deficient and that there was not enough time given to the public specifically the marginalised communities to submit their views on the Affordable Housing Bill.
He further claimed that the National Assembly published factsheet No 14 on Public Participation, which sets out the methodology to be adopted for effective public participation, disregarded the said factsheet.
The ways include creating awareness, involvement, contacting the public, meetings and feedback mechanisms.
The AG and Housing PS Charles Hinga opposed the petition saying it was an insult to scuttle a constitutional process and, hence unconstitutional.
The National Assembly explained that the bill was, pursuant to Standing Order 127 (1), referred to departmental committee whereafter pursuant to Standing Order 127 (3).
The order states that "The Departmental Committee to which a Bill is committed shall facilitate public participation on the Bill through an appropriate mechanism, including (c) Consulting relevant stakeholders in vant stakeholders a sector and(d) Consulting experts on technical subjects".
It was published on December 9, 2022, by the House Clerk of in the local dailies inviting submission of memoranda by the public.
It submitted that the aforesaid notice did not state that public participation was limited to the submission of memoranda in the manner prescribed in the said notice.
The House told the court that the petition before it was unsuited as it sought to challenge an ongoing legislative process and was an insult to the doctrine of Separation of Powers.
It also submitted that the court lacked supervisory jurisdiction over the House while the latter was executing its core mandate of enacting legislation.
Upon determination, Justice Shariff concurred with the respondents and found that the petition lacked merit.