[2022] KEHC 11209 (KLR)

Aluochier v Independent Electoral and Boundaries Commission & 4 others (Petition 182 of 2018) [2022] KEHC 11209 (KLR) (Constitutional and Human Rights) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11209 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 182 of 2018

HI Ong'udi, J

June 16, 2022

Between

Isaac Aluoch Polo Aluochier

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Wafula Wanyonyi Chebukati

2nd Respondent

Roselyn Kwamboka Akombe

3rd Respondent

Abdi Yakub Guliye

4th Respondent

Boya Molu

5th Respondent

Ruling

1. The petitioner filed a petition dated 7th May 2018 seeking the following reliefs that this Honourable Court:-a)A declaration that the 1st respondent has contravened order (iii) of the Supreme Court in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR by denying the petitioner his right to fair administrative action under Article 47(1) of the constitution and his right to fair hearing under Article 50(1), by failing to settle his presidential election complaints lodged with it on 6 September 2017 and on 12 October 2017 under the terms of article 88(4) (e) and section 74(2) of the Elections Act requiring the determination of electoral disputes within ten days of the lodging of such disputes with the 1st respondent.b)Issues an order for compensatory damages, payable into the consolidated fund covering the total cost of holding a fresh presidential election after the one held on 8 August 2017, to be retrieved by or on behalf of the 1st respondent from its culpable public officers, including but not limited to the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents pursuant to article 226(5) of the constitution and other applicable laws, to occasion no net loss of public funds.c)Issues an order for compensatory damages covering the total costs of the instant petition, to be retrieved by or on behalf of the 1st respondent from its culpable commissioners, the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents, pursuant to article 226(5) of the constitution and other applicable laws, to occasion no net loss of public funds.d)Issues an order for vindicatory damages of an amount to be determined by the court, to be retrieved by or on behalf of the 1ts respondent from its culpable commissioners, the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents, pursuant to article 226(5) of the constitution and other applicable laws, to occasion no net loss of public funds.e)Issues an order of exemplary damages against the 1st respondent of between Shs 7,000,000/- and Shs 70,000,000/- assessed at Shs 1,000,000/- to Shs 10,000,000/- for each culpable person, to be retrieved by or on behalf of the 1st respondent from its culpable commissioners, the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents, pursuant to article 226(5) of the constitution and other applicable laws, to occasion no net loss of public funds.

Petitioner’s case 2. A summary of his case as set out in the petition and affidavit sworn on 7th May 2018 is that, on 1st September 2017 in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR, the Supreme Court of Kenya ordered the 1st respondent to conduct a fresh presidential election within 60 days of the said order. This was to be in strict conformity with the constitution and all applicable electoral laws following its finding that the 1st respondent had committed irregularities and illegalities in the conduct of the presidential election held on 8th August 2017, that impugned the integrity of the said election.

3. The last general elections season commenced on 17th March 2017 with the 1st respondent issuing a Gazette Notice No. 2692 announcing the holding of a presidential election on 8th August 2017. It concluded with the swearing in of the presidential elect following the fresh presidential election held on 26th October 2017.

4. He avers that on 5th June 2017, he lodged 3 complaints with the 1st respondent, 2 of which touched on presidential elections. The same was however dismissed on 8th June 2017 for want of jurisdiction after a hearing that took no more than 5 minutes contrary to the decision in Supreme Court of Kenya in Petition No. 12 of 2014, Moses Masika Wetangula v Musikari Nazi Kombo & 2 others [2015] eKLR and the High court Petition No. 408 of 2013, Commission on Administrative Justice v John Ndirangu Kariuki& Independent Electoral and Boundaries Commission [2016] eKLR.

5. On 6th September 2017, he filed a fresh presidential election complaint with the 1st respondent, indicating that it had jurisdiction requesting it to abide with the Supreme Court order (iii) delivered in Raila Amolo Odinga (supra), and hear and determine the complaint within the 10 days stipulated in Section 74(2) of the Elections Act.

6. Subsequently, on 8th September 2017, he filed his affidavit of service after having duly served the respondents with the said complaint coupled with a letter to the 1st respondent requesting for directions in the resolution of the complaint, again reminding it of its obligation for expeditious determination of the matter by 16th September 2017. By the said date, the 1st respondent had not taken any action therefore contravening Section 74(2) of the Elections Act. Further even at the eve of the date of fresh presidential elections the 1st respondent had still not acted contrary to Section 74(3) of the Elections Act. Hence in contravening Sections 74(2) and (3) the 1st respondent also contravened order (iii) of the Supreme Court in Raila Amolo Odinga requiring it to conduct the fresh presidential elections in strict conformity with the constitution and all applicable election laws.

7. He depones further that on 12th October 2017, he lodged via email a fresh presidential election complaint on the premise that the 1st respondent failed to conduct a fresh nomination of presidential candidates with respect to the fresh presidential election as ordered by the Supreme Court. Despite reminding them of their obligation under Sections 74(2) and (3) of the Elections Act, they failed to act before the 26th October 2017, which was the date of the presidential election.

8. He avers that had it carried out its constitutional duties as per Article 88(4) of the constitution, with respect to properly determining the petitioners 3 complaints before it on 5th June 2017, the instant petition would be unnecessary as the matter would have been resolved prior to the general elections of 8th August 2017. It is therefore the 1st respondent’s repeated in action that necessitated the petition.

9. According to him, multiple billions would have also been saved on the cost of the a fresh presidential election, as the non- qualifying candidates who were eventually declared president- elect and deputy president – elect would have been disqualified from participating in the 8th August 2017 general elections.

10. Consequently his right to fair administrative action under Article 47(1) of the constitution and his rights to fair hearing under Article 50(1) of the constitution were contravened by the failure to settle his presidential election complaint lodged on 6th September 2017 and 12th October 2017 under the terms of Article 88(4) (e) and Section 74(2) of the Elections Act.

11. According to him, the 2nd, 3rd, 4th and 5th respondents were the commissioners and members of the 1st respondent during the election period, with the qualification that the 4th respondent resigned as a commissioner of the 1st respondent within the last two weeks prior to the election of 26th October 2017. They bore ultimate responsibility for the actions and omissions of the 1st respondent.

12. The petitioner also filed a further affidavit to the 1st respondent’s replying affidavit. It is dated 29th June 2020.

The Preliminary Objection by the 3rd, 6th and 7th respondents 13. Vide a ruling delivered by Makau J on 26th September 2019 regarding the 3rd, 6th and 7th respondents notice of preliminary objection dated 23rd July 2018, the court found no basis for them being enjoined in the petition and their names were struck out from the petition. The said decision was appealed against. The outcome is not known to this court.

The 1st respondent’s case 14. The 1st respondent filed replying affidavit which has been referred to although the same is neither in the file nor in the CTS.

The 2nd, 5th & 8 th Respondents’ case 15. The 2nd - 5th respondents filed a notice of preliminary objection dated 23rd June 2020. It is to the effect that their names be struck out and for the entire petition to be struck out on the following grounds:i.This Honourable court lacks jurisdiction to hear and determine the instant petition as the petitioner seeks to raise/ revisit issues which relate to a presidential Election Petition which are issues exclusively reserved for the Supreme Court by virtue of Articles 140 and 163(3) of the constitution. The specific issues raised in the petition relate to:a.The petitioner’s presidential election complaints.b.The eligibility, nomination and qualification of candidates for the position of presidency in the 2017 general elections.c.Appropriate redress for the petitioner and members of the public for the costs incurred by the 1st respondent to hold the repeat presidential election in the year 2017; andd.The effect of illegalities and irregularities arising from the 2017 presidential election.ii.The decision of the Supreme Court in relation to the presidential election in the general election in 2017 and the repeat presidential election are final by virtue of articles 140(2) of the constitution.iii.The subject of the petition herein relates to complaints concerning the conduct of the presidential elections by the 1st respondent. The 1st respondent being a body corporate is capable of being sued and being sued in its own name as provided for under section 13 of the Independent Electoral and Boundaries Commission Act.iv.The 2nd, 5th and 8th respondents are the chairperson and commissioners of the 1st respondent respectively and by virtue of articles 250(9) of the constitution and section 15 of the Independent Electoral and Boundaries Commission Act are not liable for actions done in good faith in the performance of a function of office.v.The petition does not disclose any cause of action against the 2nd, 5th and 8th respondents and as such they are not necessary parties in the suit.The 1st respondent’s submissions in support of the preliminary objection

16. The 1st respondent filed submissions by G & A advocates in support of the Preliminary objection dated 13th October 2020 raising two issues for determination. To wit, whether the High court has jurisdiction to hear and determine the petition and whether the 2nd to 5th respondents were properly enjoined in the matter. On the issue of jurisdiction and citing the cases of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696 on the nature of a preliminary objection; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR; Samuel Kamau Macharia vs Kenya Commercial Bank and 2 others (2012) eKLR on jurisdiction, counsel submitted that a court of law cannot confer upon itself jurisdiction, it can only be donated to it by statute or the constitution.

17. The 1st respondent relied on, Articles 165 that establishes the High Court; Article 165 (3) (a) that gives the High Court unlimited jurisdiction in criminal and civil matters; Article 165 (5) (a) that limits the jurisdiction of the High court; Article 163 that establishes the Supreme Court; and Article 163 (3) (a) that gives the Supreme Court exclusive jurisdiction to hear and determine the disputes relating to the elections of the office of the President arising under Article 140. Further relying on article 140, he argued that the said article grants any person the opportunity to file a petition to challenge the elections of the President elect.

18. According to it, the question of whether fresh nominations were to be held before the repeat elections held on 26th October 2017 raised in the petition were dealt with in Presidential Election No. 2 & 4 Consolidated of 2017: John Harun Mwau & 2 others vs IEBC & 2 Others.

19. Relying on the Supreme Court’s Opinion in the Matter of the Principle of Gender Representation; David Pkosing v National Super Alliance & 13 others [2017] eKLR the 1st respondent answered in the affirmative the question whether all questions arising and having a bearing on the conduct of the presidential elections belong to the jurisdiction of the Supreme court.

20. On the second issue, relying on Article 253 and 250(9) of the constitution and Section 15 of the IEBC Act counsel submitted that the respondents have since their appointment to office always discharged their legal mandate in accordance with the constitution and the IEBC Act. Further that the decision to conduct the 2nd presidential election in 2017 were done in good faith and in consideration of the court’s decision in Ekuru Aukot vs IEBC & 3 others(2017) eKLR and in the Presidential Election Petition No. 2 & 4 ( Consolidated) of John Harun Mwau & 2 others vs IEBC & 2 others. In the event there would be a claim against the 1st respondent then the petitioner should have brought it without involving the respondents. The Court was urged to strike out the names of the respondents as it’s earlier on decision.

The Petitioner’s response to the preliminary objection 21. The petitioner filed response to the preliminary objection dated 26th June 2020. He stated that the court is not being asked to determine the complaints dated 6th September 2017 and 12th October 2017 that were before the 1st respondent. Rather it is being asked to determine the effect of the respondents failure in complying with Article 88 (4)(e) of the constitution, section 74(2) of the Elections Act, and order (iii) of the Supreme Court in Raila Amolo Odinga & another v Independent Electoral and Boundaries commission & 2 others [2017] eKLR.

22. He further stated that he has not questioned the finality of the determination of the Supreme Court in 2017 presidential election petitions, but has instead relied on the same determination. He asserted that because the 1st respondent has the capacity to be sued does not exonerate the other respondents from being sued in light of Article 226(5) of the constitution.

23. He claimed that Article 250(9) of the constitution and Section 15 of the IEBC Act are not blanket immunities granted to the constitution commissions but must be read together with other constitutional provisions and legislations and must be construed as an integrated whole with no provision ousting the other. According to him, a reading of Article 248 and 250(9) of the constitution, the protection from personal liability for a member of a commission, for actions done in good faith in the performance of a function of office is not absolute. Where the constitution provides for the personal liability of a member of a commission, that other provision has priority over the provisions of Article 250(9).

24. Citing Article 226(5) and Article 236(a) of the constitution, he claimed that compliance with the constitution and any other law is key to ensuring protection of the public officer from victimization. Further, a reading of Articles 248(1), 250(9), 226(5), 236 and 260 of the constitution, reveals that a member of the commission to which Chapter Fifteen applies who directs or approves the use of public funds contrary to the law, is liable for any loss from that use and shall make good the loss, whether the member remains the holder of that office or not.

25. Relying on Articles 88(1) (5), 2, and 3(1) of the constitution, he stated that the 1st respondent including the 2nd, 4th and 5th respondents had a constitutional duty to conduct the affairs of the 1st respondent lawfully and only in accordance with the constitution and national legislation. Any conduct to the contrary did not fall under the protections within the stated provisions of the Law.

26. He averred that on 1st September 2017 in the Raila Amolo Odinga case (supra), the Supreme Court of Kenya ordered the 1st respondent to conduct a fresh presidential election within 60 days of the said order in strict conformity with the constitution and all applicable election laws., following its finding that the 1st respondent had committed irregularities and illegalities in the conduct of presidential election held on 8th August 2017, which impugned the integrity of the said election. On account of the irregularities and illegalities perpetuated by the respondents, the public lost about shs 12billion, being the cost of the repeat election. Consequently, pursuant to article 226(5) of the constitution, the respondents enjoy no such immunity, as claimed.

27. He further contended that the cause of action against the 2nd, 4th and 5th respondents arises on account of their being the directing and approving officers of the 1st respondent in the context of Articles 226(5) of the constitution. On account of the supreme courts finding, there indeed exists a cause of action against them.

The Petitioner’s response to the 1st respondent’s submissions in support of the preliminary objection 28. The petitioner filed submissions dated 21st October 2020. Reiterating the contents of his response to the preliminary objection, he asserted that the prayers sought in the petition do not touch on the exclusive jurisdiction of the Supreme Court pursuant to Article 163(3) (a) of the constitution.

29. He claimed that the Supreme Court’s opinion in the matter of the principle of gender representation in the National Assembly and the Senate [2012] eKLR is an advisory opinion and not necessarily a binding decision pursuant to Articles 163(7) issued in contested matters. The same must be considered for suitability in light of the particular facts of the matter before a lower court. Further that at the time of the advisory opinion, subsidiary legislation the Supreme Court (Presidential election petition) Rules, 2017 had not been made. As subsidiary legislation is binding law, it has greater binding power than an advisory opinion when the two speak to the same matter, especially where there are differences in the two.

30. Relying on Articles 163 (3) (a) of the constitution and Rule 4 of the Supreme Court (Presidential elections petition) Rules, 2017, he stated that none of his prayers fall under those stipulated in Rule 4. Hence this matter does not fall under the exclusive jurisdiction of the Supreme Court but in the High Court.

31. He urged the court to consider the petitioner’s comments in the reply to the notice of preliminary objection dated 26th June 2020. He claimed he was in the process of appealing the decision striking out the 3rd, 6th and 7th respondents from the pleadings. He further submitted that contrary to the 1st respondent’s submission that the respondents have continually discharged their mandate without fail, the same was negated by the findings in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others[2017] eKLR. The 1st respondent was directed in its operations by the other respondents in the instant matter, hence cannot claim innocence when the Supreme Court found their conduct in their direction of the 1st respondent was marred with unconstitutionality, illegalities and irregularities.

Analysis and determination 32. Having carefully considered the preliminary objection, responses, submissions and the law I find the following issues to fall for determination: -i.Whether this court has the jurisdiction to hear and determine the petitionii.Whether the 2nd - 5th respondents have been properly enjoined in the matter.

i. Whether this court has jurisdiction to hear and determine the petition 33. The 2nd - 5th respondents argued that the instant petition raises issues which relate to a Presidential election petition which are issues exclusively reserved for the Supreme Court by virtue of Article 140 and 163(3) of the constitution. To wit; the petitioner’s presidential election complaints; the eligibility, nomination and qualification of candidates for the position of presidency in 2017 general elections; appropriate redress for the petitioner and members of the public for the costs incurred by the 1st respondent to hold the repeat elections; and the effect of illegalities and irregularities arising from the 2017 presidential elections.

34. They also argued that the subject of the petition relates to conduct of the presidential elections by the 1st respondent. Further that the decision of the Supreme Court in relation to the presidential election in 2017 and the repeat presidential elections are final by virtue of Article 140(2) of the constitution.

35. The 1st respondent argued that the question of whether fresh nominations were to be held before the repeat elections held on 26th October 2017 were dealt with in Presidential Election No. 2 & 4 Consolidated of 2017; John Harun Mwau & 2 others vs Independent Electoral and Boundaries Commission & 2 others. Further that all questions arising and having a bearing on the conduct of the presidential elections belong to the jurisdiction of the Supreme Court.

36. The petitioner argued that this court is being asked to determine the effect of the respondents failure in complying with Article 88 (4) (e) of the constitution, Section 74 (2) of the Elections Act and Orders (iii) of the Raila Amolo Odinga case (supra). He further maintained that the prayers sought in the petition did not touch on the exclusive jurisdiction of the Supreme Court and that they also did not fall under Rule 4 of the Supreme Court (Presidential election petition) Rules 2017.

37. The jurisdiction of this court has been challenged and the issue must be addressed before anything else. The Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (2022) eKLR, a decision rendered on 8th February, 2022 discussed the doctrine of jurisdiction as follows: -36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the 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 the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters 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 facts 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 judgment is given.

38. The locus classicus on jurisdiction is the case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. held as follows:…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.

39. The Supreme Court In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held in part as follows:…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.

40. In Samuel Kamau Macharia and another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court held as follows:(68).A Court’s jurisdiction flows from either the constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

41. The 2nd - 5th respondents herein have raised the issue of jurisdiction and that the issues raised in the petition are for the Supreme Court to determine. The petitioner has submitted otherwise and further argued that none of his prayers fall under whatever is envisaged under Article 163(3) (a) of the constitution and Rule 4 of the Supreme Court (Presidential election petition) Rules 2017.

42. This clearly invites this court to assess the petition to be able to decipher whether the issues raised therein are for this court’s determination or for the Supreme Court’s determination. It also calls upon this court to consider the mandate of the Supreme Court, the High Court and the Independent Electoral and Boundaries Commission.

43. The Supreme Court is established under Article 163(1) of the constitution. Sub article (3) provides for the mandate of the supreme court as follows;(3)The Supreme Court shall have-(a)exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of president arising under Article 140; and(b)subject to clause (4) and (5) , appellate jurisdiction to hear and determine appeals from-(i)the Court of Appeal; and(ii)any other court or tribunal as prescribed by national legislation.

44. Article 140 of the constitution provides for the questions as to the validity of a presidential election. It provides;140(1)A person may file a petition in the Supreme Court to challenge the election of the president- elect within seven days after the date of the declaration of the results of the presidential elections.(2)Within fourteen days after the filing of a petition under clause (1), the Supreme Court shall hear and determine the petition and its decision shall be final.(3)If the Supreme Court determines the election of the president- elect to be invalid, a fresh election shall be held within sixty days after the determination.

45. Rule 4 of the Supreme Court (Presidential election petition) Rules 2017 provides for the application of the rules as follows:-4. (1)These Rules apply to the conduct of an election petition in relation to the office of the President and includes a petition filed—(a)upon the declaration by the Commission of the President-elect under Article 138 (10) of the constitution and section 39 of the Elections Act, 2011;(b)pursuant to Article 140 of the constitution; and(c)in relation to a presidential election other than a general election.(2)Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2017 in so far as they are not inconsistent with the Act or these Rules, shall apply to an election petition.

46. Based on the provisions of the constitution and the rules it is clear that the Supreme Court handles matters concerning the presidential election petitions and Rule 4(1) (c) of the Supreme Court (Presidential election petition) Rules 2017 is explicit that the rules are also applicable to a presidential election other than a general election.

47. Articles 165 of the constitution establishes the High Court. Sub article 3 provides for its mandate as follows:-(3)subject to clause (5), the High Court shall have-a.Unlimited original jurisdiction in criminal and civil matters;b.jurisdiction to determine the question whether a right of fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;c.jurisdiction to hear an appeal from a decision of a tribunal appointed under this constitution to consider the removal of person from office, other than a tribunal appointed under Article 144;d.jurisdiction to hear any questions respecting the interpretation of this constitution including the determination of-i.the question whether any law is inconsistent with of in contravention of this constitution;ii.the question whether anything said to be done under the authority of this constitution or of any law is inconsistent with, or in contravention of, this constitution;iii.any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government ; andiv.a question relating to conflict of laws under Article 191; ande.any other jurisdiction, original or appellate, conferred on it by legislation.

48. Article 23 (1) of the constitution provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

49. Article 23(3) of the constitution provides that in any proceedings brought under Article 22, a court may grant appropriate relief, including-a)A declaration of rights;b)An injunction;c)A conservatory order;d)A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;e)An order for compensation; andf)An order of judicial review.

50. The 1st respondent is established under Article 88(1) of the constitution. Sub- Article (4) provides as follows:

(4)The commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the constitution, and any other elections as prescribed by an Act of Parliament and, particular, for-a)The continuous registration of citizens as voters;b)The regular revision of the voters’ roll;c)The delimitation of constituencies and wards;d)The regulation of the process by which parties nominate candidates for elections;e)The settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;f)The registration of candidates for election;g)Voter education;h)The facilitation of the observation, monitoring and evaluation of elections;i)The regulation of the amount of money that may be spent by or on behalf of a candidate in respect of any election;j)The development of a code of conduct for candidates and parties contesting elections; andk)The monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties. 51. The Independent Electoral and Boundaries Commission Act (IEBC Act), No. 9 of 2011 Section 4 therein echoes the functions of the Respondent as provided for under Article 88 (4) of the constitution and adds as hereunder;l)deleted by Act No. 36 of 2016, s. 30;m)the use of appropriate technology and approaches in the performance of its functions; andn)such other functions as are provided for by the constitution or any other written law.

52. Section 74 of the Elections Act No. 24 of 2011 provides for settlement of certain disputes as follows-74. Settlement of certain disputes(1)Pursuant to Article 88(4)(e) of the constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2)An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3)Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

53. The petitioner has categorically stated that the complaint before this court is not based on the complaints before the 1st respondent. That is the complaints of 6th September 2017 and 12th October 2017. I have keenly looked at the said complaint of 12th October 2017 as the one of 6th September 2017 was not annexed. It was asking the 1st respondent to cancel the presidential election scheduled for 26th October 2017 and to hold a new election within 60 days thereafter.

54. The basis for that was that no fresh nominations were conducted after the nullification of the 8th August 2017 general election by the Supreme Court and that being the case, articles 138(8) (a) and 138(9) of the constitution came into play. This is clearly a dispute after the declaration of the results and therefore was not within the jurisdiction of the 1st respondent to handle.

55. What is the petitioner seeking? A look at the petitioner’s case and more so the prayers reveals that the petitioner takes issue with the 1st respondents failure to comply with order (iii) of the Supreme Court in Raila Amolo Odinga case (supra) and is therefore seeking a declaration that the 1st respondent has contravened the said order by denying him his right to fair administrative action under articles 47(1) of the constitution and his right to fair hearing under article 50(1), by failing to settle his presidential election complaints under the terms of articles 88(4) (e) and section 74(2) of the Elections Act. He has further sought for compensatory damages for holding a fresh election, compensatory damages for the total costs of the instant petition, vindicatory damages, and exemplary damages.

56. Order (iii) of the Supreme Court judgment that the petition refers to stipulates as follows:-An order is hereby issued directing the 1st respondent to organize and conduct a fresh Presidential Election in strict conformity with the constitution and applicable election laws within 60 days of this determination under Article 140(3) of the constitution.

57. In my view, the petition is fashioned in a way that it is asking this court to declare that the 1st respondent has contravened an order of the Supreme Court, which would amount to contempt of a Court order. The petitioner has not asked this court to declare that his rights were violated by the respondents but has instead asked this court to declare that the 1st respondent contravened the Supreme Court order (iii).

58. Looking at Articles 23 (1) and (3) of the constitution, the court cannot grant the orders sought. Further by virtue of Rule 4 (1) (c) of the Supreme Court (Presidential election petition) Rules 2017, the rules are applicable to a presidential election other than a general election, and therefore applicable herein. The right forum is the Supreme court because by virtue of Section 28 (4) of the Supreme Court Act and Rule 57 of the Supreme Court Rules 2020, the Supreme court can punish for contempt which is what the petitioner is seeking. The other orders sought are as a result of the alleged contravention of the order by the 1st respondent. The said prayers cannot be separated from the main issue of contempt.

59. The 2nd – 5th respondents have questioned their joinder in these proceedings. An earlier preliminary objection dated 7th May 2018 raised by then 3rd, 6th & 7th respondents was handled by Makau J who allowed it and struck out the names of the applicants. However the now 2nd – 5th respondents were not considered as they were not parties to the said preliminary objection.

60. Having found that this matter ought to have been filed in the Supreme Court whose orders the Petitioner claims to have been disobeyed then this Court lacks the jurisdiction to deal with the issue at hand. The prayers sought by the petitioner all arise from the said Order (iii) of the Supreme Court and the annulled presidential elections by the said Court. It is the Supreme Court that would deal with the secondary issues raised by the petitioner. On that ground this court downs its tools and strikes out the petition with costs.

Orders accordingly.

DELIVERED VIRTUALLY THIS 16TH DAY OF JUNE 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT