position that if the Constitution or a statute assigns ministerial
responsibility to a specific Cabinet Secretary then any reassignment of such responsibility to another Cabinet Secretary
must be preceded by appropriate amendments to the
Constitution or statute.
134. The position is fortified in that any amendment to the
Constitution or statute must be preceded by public
participation. Indeed, Courts have variously held that
Parliament and County Assemblies must carry out elaborate
public participation as the case may require. It also depends on
the nature of the matter under consideration.
135. …..
136. …….
137. Therefore, if any re-assignment of ministerial responsibility
provided for by the Constitution or a statute must be subjected
to public participation, as the case may be, then even in
instances where the Constitution or the law is silent on the
assignment of ministerial responsibility, any re-assignment of
such responsibility must as well be preceded by public
participation. The element of public participation must,
therefore, be undertaken in any decision re-assigning
ministerial responsibility. I say so because re-assigning
ministerial responsibility affects an earlier decision which
assigned the responsibility to another Cabinet Secretary. The
re-assignment cannot hence be done unilaterally. It must be
preceded by public participation.
138. The decision to re-assign ministerial responsibility is one which
transcends the borders of internal operational decisions in
exercise of the executive authority into the arena of, and has a
significant effect on the major sector players, stakeholders
and/or the public. For instance, if a decision deals with
reshuffling of the Cabinet, renaming of ministries and state
departments, among like others, then such a decision is purely
a decision on the internal operations of the executive and need
not to be subjected to public participation.
161. The above decisions sufficiently settled the aspect of the threshold
required to subject decisions by public entities to public engagement.
Whereas not all decisions by public entities ought to be subjected to
public participation, there are those decisions which transcend the
Judgment – Nairobi High Court Constitutional Petitions No. E211 of 2022 & JR No. E071 OF 2022
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