[2017] KEHC 9216 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 533 OF 2017

IN THE MATTER OF AN APPLICATION BY ADEN NOOR ALI FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT (CAP 26) LAWS OF KENYA

ADEN NOOR ALI..........………………….........................................................APPLICANT

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION......1ST RESPONDENT

THE JUBILEE PARTY...........................................................................2ND RESPONDENT

AND

JENIFFER SHAMALLA.............................................................1ST INTERESTED PARTY

PARLIAMENTARY SERVICE COMMISSION.........................2ND INTERESTED PARTY

RULING

1. By a notice of motion filed on 29TH August 2017, the applicant sought orders for:-

i. Leave to apply for certiorari to quash Gazette notice number 8379 dated 25th August 2017 relating to the nomination of the first interested party to the National Assembly.

ii. Leave to apply for prohibition to prohibit the second interested party from swearing in the first interested party as the nominee of the first Respondent as per the said gazette notice.

iii. Leave to apply for a order of mandamus compelling the first Respondent to gazette the applicant as the second Respondents nominee to the national assembly to represent the marginalized group.

iv. Leave so granted to operate as stay of the said gazette notice pending the filing, hearing and determination of the substantive application.

v. That the chair person of the first Respondent be summoned to show cause why he should not be cited for contempt of court.

2. The core ground in support of the application is that the chair person of the second interested party disobeyed a decree rendered by the Political Parties Dispute Tribunal and gazetted the first interested party.

3. On 29th August 2017, at the ex parte stage, in conformity with the provisions of the proviso to Rule 4of order 53 of the Civil Procedure Rules, 2010, I directed that the applicant serves the application for inter partes hearing on the question of grant of leave and whether or not leave if granted shall operate as stay. I fixed the matter for inter partes hearing on 5th September 2017.

4. However, the following day, i.e. 30th August 2017, counsel for the applicant filed another certificate of urgency, seeking "courts directions" on his application and after hearing him, I reiterated my earlier ruling but brought the inter partes hearing date forward to 31st August 2017 and directed that he serves all the parties accordingly.

Preliminary objection

5. Counsels for the second Respondent and the first interested party filed notices of preliminary objection objecting to this court's jurisdiction. The crux of their objection is that the first interested party having been gazetted as aforesaid became a member of the National Assembly, Hence, the question of the validity of the membership can only be resolved by way of an election petition filed in accordance with articles 87, 105 (1) (b) of the constitution as read with section 76 of the Elections Act and that where a statute establishes a dispute resolution procedure, then the procedure must be followed.

6. To buttress their objection, counsels cited the Supreme Court decision rendered in Moses Mwicigi & 14 Others vs I.E.B.C & 5 Others[1] (referred to below) and Kones vs Republic[2]in which it was held that the only way of challenging the outcome of the electoral process is through an election petition and that nomination of members to the National Assembly is part of the electoral process as provided in the constitution and the relevant statute. Also cited is the decision by Majanj J in The National Alliance Party vs Lydia Mathia[3]where a similar holding was made.

7. The petitioners counsel argued that the preliminary objection is pre-mature and ought to have been raised after leave is granted. He premised his argument on the proviso to sub-rule 4of order 53 cited above which reads:-

Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave. Provided further that where circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.

8. In his view, the question of whether or not leave should be granted ought to be determined first after which the question whether or not leave so granted should operate as stay ought to be determined separately within seven days. With tremendous respect, I do not agree with the said position. The above proviso is clear. It reads "Provided further that where circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days." My reading of the above provision is that it is only where the circumstances so permit and that the provision leaves it to the judge to give the directions. Thus, the ultimate determination is within the discretion of the judge.

9. The starting point while interpreting a statute is the language itself. In the absence of an expressed legislative intention to the contrary, the language must ordinarily be taken as conclusive.The Supreme court of India in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others[4]observed that:-

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”

10. [C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”[5]

11. The applicants counsel also submitted that this court has powers to supervise the PPDT and insisted that he had made a case for the court of grant the leave sought and for the leave to operate as stay. I will address this point while determining the issues.

Issues for determination

12. Two issues fall for determination, namely; whether the applicant has satisfied the threshold for granting the leave sought; whether the preliminary objection has merits.

13. The first issue can be disposed by addressing the question "what is the purpose of leave in judicial Review proceedings.?"The importance of obtaining leave in a judicial review application was well captured in the words of Waki J (as he then was) in the case of Republic vs County Council of Kwale & Another Ex-parte Kondo & 57 others[6] where he stated:-

“ is to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived..”(Emphasis added)

14. In Meixner & Another vs A.G,[7]it was held that the leave of court is a prerequisite to making a substantive application for Judicial Review with a view to filtering out frivolous applicationsand the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the applicant has an arguable case.

15. Thus, the first step in the judicial review procedure involves the mandatory "leave stage." At this stage an application for leave to bring judicial review proceedings must first be made. The leave stage is used to identifyand filterout, at an early stage, claims which may be trivial or without merit.

16. At the leave stage an applicant must show that:- (i) he/she has 'sufficient interest' in[8]the matter otherwise known as locus standi; (ii) the applicant must demonstrate that he/she is affected in some way by the decision being challenged; (iii) An applicant must also show that he/she has an arguable case and that the case has a reasonable chance of success; (iv) the application must be concerned with a public law matter, i.e. the action must be based on some rule of public law; (iv) the decision complained of must have been taken by a public body, that is a body established by statute or otherwise exercising a public function. All these tests are important and must be demonstrated.

17. Thus, at the leave stage, the applicant has the burden of demonstrating that the decision is illegal, unfairandirrational as discussed above. The applicant must persuade the court that the application raises a serious issue. This is a low threshold. A serious issue is demonstrated if the judge believes that the applicant has raised an arguable issue that can only be resolved by a full hearing of the judicial review application. If the court is not persuaded as aforesaid, leave will be denied and the matter proceeds no further.

18. In short, the purpose of the requirement for permission is to eliminate at an early stage claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the court is satisfied that there is a case fit for further consideration. Permission will be granted only where the court is satisfied that the papers disclose that there is an arguable case that a ground in seeking judicial review exists which merits full investigation at a full hearing.[9]

19. Thus, the question now for consideration is whether or not the application for leave is hopeless, frivolous or vexatious and whether it raises case fit for consideration. This is the acid test this application must be subjected to at this stage. As was held in Meixner & Another vs A.G,[10]leave of court is a prerequisite to making a substantive application for Judicial Review with a view to filtering out frivolous applicationsand the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the applicant has an arguable case.

20. It is admitted that the first interested party was Gazetted. The law on this point in this country has been reiterated time without a number in a catena of authorities. The Supreme court of Kenya decision in the case of Moses Mwicigi & 14 Others vs I.E.B.C & 5 Others[11]cited by the counsels for the first Respondent and the first interested party in support of their opposition for leave correctly captures the law on this point. The Apex court of Kenya pronounced itself as follows:-

"…It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC, as an integral part of theelection process.

[106]TheGazette Noticein this case, signifies the completion of the “election through nomination”, and finalizes the process of constituting the Assembly in question. On the other hand, an “election by registered voters”, as was held in theJoho Case,is in principle, completed by the issuance of Form 38, which terminates the returning officer’s mandate,and shifts any issue as to the validity of results from the IEBC to the Election Court.

[107]It is therefore clear that the publication of theGazette Noticemarks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts any consequential dispute to the Election Courts. TheGazette Noticealso serves to notify the public of those who have been “elected” to serve as nominated members of a County Assembly.

21. The above position being the law, it follows that the applicant has no arguable case, his case is frivolous and vexatious and does not deserve the leave sought. On this ground alone, the applicants application for leave to institute judicial proceedings premised on the facts discussed above fails.

22. The second issue is the question of jurisdiction. Counsel for the applicant argued that the preliminary objection touching on the jurisdiction of this court is pre-mature and ought to be raised after leave is granted. I have above addressed this question and particularly my understanding of the proviso referred to by counsel for the applicant. It will suffice to mention that it is settled law that questions of jurisdiction ought to be raised at the earliest opportunity possible.

23. Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; afortiori the Court can suo motu raise it. It is desirable that Preliminary Objection be raised early on the issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.[12]

24. Thelocus classicus decision in Kenya on jurisdiction is the celebrated case of Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd[13] where the late Justice Nyarangi of the Court of Appeal held as follows:-

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

25. John Beecroft in a treatise headed “Words and Phrases Legally Defined”[14] states the following about jurisdiction:-

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and maters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the fact exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

26. A Court’s jurisdiction flows from either the Constitution or legislation or both. The Supreme Court in the matter of the Interim Independent Electoral Commission,[15] at paragraphs 29 and 30 discussed the issue of jurisdiction in the following manner; "Assumption of jurisdiction by courts in Kenya is a subject regulated by the constitution; by statute law, and by principles laid out in judicial precedent." Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written laws.[16]

27. In the words of Chief Justice Marshall of the U.S.A, in Cohens vs. Virginia:-[17]

“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty.”

28. The Supreme court of Kenya decision in the case of Moses Mwicigi & 14 Others vs I.E.B.C & 5 Others[18] cited above is very clear on this question. The dispute before me is not an election petition. It is improperly before this court. This court cannot assume jurisdiction and take it up. The best I can do is to decline jurisdiction as I hereby do and uphold the preliminary objection.

29. It is also pleaded that the matter was heard and determined by the Political Parties Disputes Tribunal as evidenced by a copy of the judgment and decree annexed to the application. In fact counsel for the applicant urged the court to "use its supervisory powers an supervise the tribunal."The Tribunal is not a Respondent in this application and the judicial review reliefs sought are not against the Tribunal. Further, there is a clear legal mechanism for enforcing the decision of the Tribunal.

Determination

30. In my opinion, applying the principles laid down in the authorities cited above, and guided by my determination of the issues and analysis of the law as enumerated above, the conclusion becomes irresistible that the applicant has not satisfied the threshold to be granted the leave sought. Further, I find that the preliminary objection raised is this case has merits.

31. Accordingly, I uphold the preliminary objection raised by counsels for the first Respondent and first interested Party. The upshot is that the applicants application dated 29th August 2017 is hereby dismissed with costs to the first Respondent and the first interested party.

Orders accordingly.

Dated at Nairobi this 4thday ofSeptember2017

John M. Mativo

Judge

[1] {2016}eKLR

[2] Civil Appeal No. 94 of 2005

[3] Pet No. 175 of 2013

[4] {1987} 1 SCC 424

[5] Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The Court takes much the same approach when it chooses congressional intent rather than statutory text as its touchstone: a canon of construction

should not be followed “when application would be tantamount to a formalistic disregard of congressional intent.” Rice v. Rehner, 463 U.S. 713, 732 (1983).

[6] Mombasa HCMISC APP No 384 of 1996

[7]{2005} 1 KLR 189

[8] See R vs Panl for Takeovers and Mergers ex p Datafin {1987}I Q B 815

[9] R vs Legal Aid Board Ex p Hughes {1992} Adm. L. Rep. 623}

[10]Supra

[11] Supra

[12] Belgore J.S.C. See Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd, (1992) 5 NWLR (Pt. 244) 675 at 693

[13] {1989} KLR 1

[14] Volume 3:1-N, at Page 113

[15] Constitutional Application No. 2 of 2011 (unreported)

[16] Samuel Kamau Macharia v. Kenya Commercial Bank and Two others, Civ. Appl. No. 2 of 2011

[17] 19 U.S. 264 (1821)

[18] Supra