Constitutional Petition No. 159 of 2018 (supra) had the following to say: 130. Whereas the above decision dealt with a state corporation exercising statutory power, the threshold adopted by the Court apply in the circumstances of this case in equal measure. In other words, a decision taken in exercise of executive authority may have to be subjected to public participation or not depending on its resultant effect. As held in the above case, if the decision ‘only impacts on the normal and ordinary day-today operations of the entity……Subjecting …. to public participation is undesirable and will, without a doubt, result to more harm than any intended good. The harm is that public entities will be unable to carry out their functions efficiently as they will be entangled in public participation processes in respect to all their operational decisions. It would likely be impossible for any public entity to satisfactorily discharge its mandate in such circumstances. As long as a decision deals with the internal day-to-day operations of the entity such a decision need not be subjected to public engagement.’ 131. The converse is also correct. As held ‘the opposite is true of decisions involved in the second scenario: these are operational decisions whose effect transcends the borders of the public body or agency into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public. There is, clearly, ample justification in subjecting the exercise of the statutory power in this scenario to public participation. The primary reason is that the resultant decisions have significant impact on the public and/or stakeholders.’ 132. There is further justification to the position that executive decisions which transcends into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public ought to be subjected to Article 10 of the Constitution. The justification finds refuge in Article 132(3)(c) of the Constitution which requires that any assignment of ministerial responsibility to a Cabinet Secretary ought not to be inconsistent with any Act of Parliament. Therefore, the exercise of the executive power under Article 132(3)(c) of the Constitution is not absolute. The exercise of such authority is subject to the law. 133. I see another justification. It borrows from the argument which I developed on the concept of ministerial responsibility by Constitution or statute. In the discussion, I settled for the Judgment – Nairobi High Court Constitutional Petitions No. E211 of 2022 & JR No. E071 OF 2022 Page 41 of 59