REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(CENTRAL REGISTRY)
JR No. 317 OF 2013
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN THE FORM OF ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF THE DEVOLUTION OF HEALTH SERVICES TO COUNTY LEVEL
AND
IN THE MATTER OF THE FOURTH SCHEDULE TO THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF KENYA GAZETTE SUPP. NO. 116 (LEGAL NOTICES 137-182)
AND
IN THE MATTER OF THE TRANSITION TO DEVOLVED GOVERNMENT ACT, 2012
BETWEEN
REPUBLIC...........................................................................................APPLICANT
AND
THE TRANSITION AUTHORITY....................................................... RESPONDENT
COUNCIL OF GOVERNORS……………………………………………..INTERESTED PARTY
EX PARTE APPLICANTS:
1. KENYA MEDICAL PRACTITIONERS, PHARMACISTS AND DENTISTS UNION (KMPDU)
2. KENYA NATIONAL UNION OF NURSES (KNUN)
3. KENYA HEALTH PROFESSIONALS SOCIETY (KHPS)
NOTICE OF MOTION
(Under Order 53 Rule 3 & 4 of the Civil Procedure Rules, 2010 and all enabling provisions of law.)
TAKE NOTICE that the Ex-parte Applicants will move the Court on the ……………..day of ………………………………2013 at 9.00 O'clock in the fore noon or soon thereafter as may appear in the daily cause list for the hearing of an application on behalf of the said Ex-parte Applicant praying for the following orders:
1. THAT the Honourable Court be pleased to issue an Order of Certiorari to remove into this Honourable Court and quash Legal Notices No. 137-182 (Kenya Gazette Supplement No. 116) being a Notice issued by the Transition Authority on the 9th of August 2013 in relation to the transfer of County Health Services.
2. THAT the Honourable Court be pleased to issue an order of Prohibition prohibiting the Transition Authority or any other body whether by itself, or any of it employees or agents or any person claiming to act under the direction of the said Authority from proceeding to enforce Legal Notice No. 137-182 (Kenya Gazette Supplement No. 116) in respect only to the transfer of functions relating to County Health Services.
3. THAT consequent to the grant of prayers (1) and (2) above the Honourable Court be pleased to issue such further directions as may be necessary to give effect to the foregoing orders.
4. THAT the costs of and occasioned by the Application be provided for.
AND TAKE NOTICE THAT THIS APPLICATION is based on the following grounds, the grounds set out in the accompanying statement dated the 30th day of August 2013 and attached to the chamber summons application for leave and the supporting affidavit of SULTANI MATENDECHERO sworn on the 30th Day of August 2013;
a. The Transition Authority is mandated under Section 15 of the Sixth Schedule to the Constitution and Sections 2, 3 and 4 (2) (c) of the Transition to Devolved Government Act, 2012 to provide a legal and institutional framework for a co-ordinated transition to the devolved system of Government while ensuring continued delivery of services to the Citizens.
b. Part of the services and functions set out for Devolution under Schedule 4 of the Constitution include County Health Services.
c. The said Transition Authority is required to at all times comply with the law and specifically the Constitution of Kenya 2010, The County Government Act 2012, The Transition to Devolved Government Act 2012 and all other provisions of the law.
d. In particular;
1. The Constitution of Kenya 2010 at Article 175 requires that County Governments have reliable sources of revenue to enable them to govern and deliver devolved services effectively.
2. The co-ordinated transition to the devolved system of Government envisaged in the Transition to devolved Government Act must be undertaken side by side with the continued delivery of QUALITY services to citizens which duty is vested on the Transition Authority (“The Authority”) in Section 7 of the Act.
3. The said Authority is required, while carrying out this statutory mandate, to comply with the provisions of Section 7 and 24 of the Act in toto and also ensure that the ideals of Article 43 of the Constitution of Kenya are at all times protected and effected.
4. The Authority has in contravention of the law and ultra vires caused to be published Kenya Gazette Supplement No. 116, Legislative Supplement No. 51 Containing Legal Notices No. 137 to 182 on the 9th of August 2013.
5. The Constitution devotes substantial attention to the ideals of good governance in Articles 10, 73 and 232 which form the platform for ensuring a smooth process of devolution which ideals the Authority has not fully complied with.
6. In transferring the Health Component to the 47 Counties, the Applicant has grossly violated the provisions of Sections 7 and 24 of the Transition to Devolved Government Act (and other pertinent portions of the same statute) and has failed to adhere to the ideals of Article 43 of the Constitution in toto.
e. In acting contrary to the law the Authority serving has acted irrationally, and in abuse of its statutory powers and if not prohibited, will cause great hardship and loss both to the Applicant's members and the general public without justification in law.
DATED at Nairobi this………………...day of....................................2013
possunt quia posse videntur