[2022] KEHC 377 (KLR)

Ben v Independent Electoral & Boundaries Commission & 5 others; Uhuru Muigai Kenyatta & 4 others (Interested Party) (Constitutional Petition E348 of 2020) [2022] KEHC 377 (KLR) (Constitutional and Human Rights) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 377 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E348 of 2020

AC Mrima, J

May 5, 2022

Between

Paul Njoroge Ben

Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Attorney General

2nd Respondent

Cabinet Secretary, National Treasury & Planning

3rd Respondent

Director-General Directorate, National Treasury & Planning of Budget, Physical & Economic Affairs

4th Respondent

Director - General Directorate, National Treasury & Planning of Budget, Physical and Economic Affairs

5th Respondent

Controller of Budget

6th Respondent

and

Uhuru Muigai Kenyatta

Interested Party

William Samoei Ruto

Interested Party

Council of Governors

Interested Party

National Assembly

Interested Party

Africa Centre for Open Governance

Interested Party

Judgment

Introduction: 1. The Petition before this Court was precipitated upon the announcement by the Independent Electoral & Boundaries Commission, (hereinafter referred to as ‘the 1st Respondent’ or ‘the Commission’ or ‘the IEBC’) that the next Presidential Elections in Kenya will be held on 9th August, 2022 (hereinafter referred to as ‘the Election date’).

2. The Petitioner, Hon. Senator Paul Njoroge Ben, is aggrieved that, arithmetically, the term of office of the President and the Deputy President, the 1st and 2nd Interested Parties herein respectively, instead ought to lapse on 28th November 2022. As such, the election date as set by the 1st Respondent is constitutionally premature and, therefore, illegal, irregular and illegitimate.

3. The Petitioner is further aggrieved that at the time the IEBC made the declaration of the election date, it was improperly constituted since it did not have a substantive Chief Executive Officer.

4. Despite the foregoing illegalities, the Petitioner contended that the Commission embarked on costly administrative processes including the tendering for procurement of various hardware and software material and hiring of personnel in preparation of the election date.

5. The Petitioner is of the position that the election date was imposed on the People of Kenya through an illegal administrative fiat of the IEBC and, therefore, every process, decision, preparation including budgetary and/or financial allocations, disbursements and funding in respect of Presidential Election of August 9, 2022 are illegal, irregular and unlawful.

6. The Petition is opposed.

The Petition: 7. By a Petition dated September 6, 2021 supported by the Affidavit of Paul Njoroge Ben deposed to on an even date, the Petitioner approached this Court seeking to inter-alia have the date when the Presidential election will be held be quashed.

8. Filed together with the main Petition was the Petitioner’s Notice of Motion application (hereinafter referred to as ‘the application’) supported by the Petitioner’s Affidavit deposed to on an even date.

9. The Application sought conservatory orders staying all procurement of hardware and software materials and personnel and all decisions by the IEBC in respect of the election date in respect to the presidential elections pending hearing and determination of both the main Petition.

10. The Court, on the proposal of the parties and upon its concurrence, directed that the application be subsumed into the main Petition.

11. In the main, the Petitioner contended that The Cabinet Secretary National Treasury and Planning, The Director-General Directorate National Treasury & Planning of Budget, Physical and Economic Affairs Controller of Budget, the 3rd 4th and 5th Respondents herein respectively, had released monies and were intending to release further public monies to the 1st Respondent illegally.

12. The Petitioner further pleaded that the intended presidential election of August 9, 2022 violated his constitutional rights including political rights provided for under Articles 38 and 136(1) & (2)(a) (on presidential elections) and Article 232 on values and principles of public service among other provisions.

13. Statutorily, the Petitioner pleaded that the impugned decision by the IEBC was in contravention of Section 4 of the Independent Electoral and Independent Electoral and Boundaries Commission Act No 9 of 2011 in respect of the mandate of IEBC and procedurally unfair, unlawful and in violation of Section 4 of the Fair Administrative Actions Act.

14. On impropriety of the existence of Acting Chief Executive Officer outside the six months’ period, the Petitioner posited that the IEBC was in violation of Section 34 of the Publics Service Commission Act No. 10 of 2017.

15. It was the Petitioner’s case that the 3rd to 5th Respondents’ actions were contrary to Section 95 of the Public Finance Management No. 18 of 2012 which bestows the Cabinet Secretary for Finance the responsibility to ensure accountability and compliance financial commitments.

16. The Petitioner also posited that the action of the IEBC was in violation of Sections 12, 18 and 19 of the Election Campaign Financing Act, 2013 which prescribes spending limits including the total amount that a candidate, political party or referendum committee may spend during an election period.

17. On the foregoing legal and factual background, the Petitioner prayed for the following reliefs: -a.A Declaration that the decision of the 1st Respondent to hold and conduct the Presidential Election of 9th August, 2022 is illegal, irregular and null and void.b.A Declaration that the decision of the 1st Respondent to hold and conduct the Presidential Election of 9th August, 2022 violates the Constitutional rights of the 1st and 2nd Interested Parties.c.A Declaration that the decision of the 1st Respondent to hold and conduct the Presidential Election of 9th August, 2022 violates the Constitutional rights of the Petitioner and the People of Kenya.d.An Order of Certiorari to remove into this Honourable Court and to quash the decision of the 1st Respondent to hold and conduct the Presidential Election of 9th August, 2022. e.An Order of Certiorari to remove into this Honourable Court and to quash the Kenya Gazette Notice No. 8024 Special Issue Vol. CXXIII-NO. 162. f.An Order of Certiorari to remove into this Honourable Court and quash all tendering processes and procurements of hardware and software materials by the 1st Respondent in respect to the intended to be deployed in the Presidential Elections of 9th August, 2022g.An order of permanent injunction prohibiting the 3rd, 4th, 5th and 6th Respondents form releasing and submitting any public money and or resources to the 1st Respondent in respect to the intended Presidential Elections of 9th August 2022. h.An order directing that the 3rd, 4th, 5th and 6th Respondents be held personally accountable and refund any public money and or resources allocated or disbursed to the 1st Respondent in respect to the intended Presidential Elections of 9th August 2022. i.An order of Mandamus directing the 1st Respondent to properly recruit a substantive Chief Executive Officer/Secretary.j.Costs of the Petitionk.Any other further Order that the Honourable Court may deem fit to grant.

The Petitioner’s submissions: 18. The Petitioner filed written submissions dated March 7, 2022 and embellished them personally in his oral highlights. He submitted that as per Article 142 (1) of the Constitution, the President is supposed to hold office for a period of 5 years from the day he/she is sworn in.

19. It was his case that the 1st and 2nd Interested Parties were sworn in on November 28, 2017 and, arithmetically, their 5-year period lapses on November 28, 2022 as opposed to August 9, 2022.

20. It was his submission that the scheduled date of 9th August, 2022 is illegal as the incumbent’s term will not have come to an end as per the provision of Article 136(2) of the Constitution which dictates elections to be held the Tuesday in August in every fifth year.

21. It was his case that the term of office of the President is protected under Article 255(1) (f) of the Constitution and cannot be amended except through referendum under Articles 256 and 257 of the Constitution.

22. On propriety of the Chief Executive Officer of the 1st Respondent, the Petitioner submitted that the Acting Chief Executive Officer was in the position for a period exceeding 6 months in contravention of Section 33 of the Public Service Commission Act. To that extent, it was his case that the Gazette Notices issued in the year 2021 and 2022 were illegal as he was in no position to do so.

The 1st Respondent’s case: 23. The 1st Respondent opposed the Petition and the application through two Replying Affidavits of Chrispine Owiye, the Director Legal Affairs of the IEBC, deposed to on 25th March, 2022 and 1st April, 2022 respectively.

24. It was his deposition that according to the interpretation of Article 142(1) of the Constitution as appreciated by the Court in Petition No. 368 of 2018, Okiya Omtatah Okoiti & Another v Independent Electoral and Boundaries Commission & another, [2020] eKLR the date of the next general election is 9th August, 2022.

25. He deposed that the presidential election cannot be isolated from the General Election in respect of election on other elective seats.

26. It was his case that the timelines set by the Constitution and the Elections Act cannot be varied or extended by any reason and that the term of office can only be changed through referendum in accordance to Article 255 of the Constitution.

27. He deposed that on 9th March, 2022 the IEBC appointed Marjan Hussein Marjan as the Chief Executive Officer and that the Commission had put in place an Elections Operation Plan to be undertaken in preparation for the General Election.

28. He deposed that the Commission had already been funded by the 3rd, 4th, 5th and 6th Respondents with the approval of National Assembly in order to discharge its functions.

29. It was his case that the Commission had procured and acquired election material including election technology, result forms, ballot papers and had expended large sums of public funds and continues to do so on voter registration.

30. In the supplementary Affidavit, he deposed that the IEBC had quorum. To that end, he referred the Court to the Supreme Court in Petition No. 12 (E016) of 2021 & Petition No. 11(E015) & Petition 13 (E018) of 2021 Hon Attorney General & 2 others v David Ndii & 79 otherswhere it was settled that the IEBC had requisite quorum.

The Submissions: 31. The 1st Respondent filed written submission dated 1st April, 2022.

32. In his oral highlights, Mr. J. B. Macharia, Counsel for the 1st Respondent associated himself with the 2nd to 5th Respondents case and the 6th Interested Party’s case.

33. It was his case that the Petitioner had not discharged the burden of demonstrating the nature of infringement, a requirement in constitutional Petitions as established in the Anarita Karimi -vs- Republic.

34. In respect of the election date, he submitted that under Article 136(2)(a) of the Constitution, all elections in a general election can only be held on the same day. He referred to the mandatory wording ‘SHALL’ of the Constitution and maintained that the constitutional timeline cannot be postponed by Court. He added that it is not a policy decision of the IEBC but the law and any postponement will be contrary to Articles 2, 256 of the Constitution.

35. He stated that the 1st and 2nd Interested Parties had acquiesced that their term of office is coming to an end on August 9, 2022 and to that end, the Petitioner is a stand-alone stranger.

36. In response to the Commission’s Chief Executive Officer position, he submitted that there is a substantive holder of the office at the moment and the previous attempts to appoint one had been thwarted by Court orders. To that end, reference was made to the decision in Henry Mutundu v Chairperson Independent Electoral and Boundaries Commission & another; Attorney General (Interested Party) [2019] eKLR and the one in Chama Cha Mawakili (CCM) v IEBC & 2 others.

37. On procurement of election materials, he submitted that there was no violation done under the PPDA Act. He urged the Court to abide by the principle that parties are bound by their pleadings on the account that there was no violation pleaded to that extent.

38. In conclusion, he implored the Court to decline the Petition.

The 2nd to 5th Respondents’ case: 39. The 2nd to 6th Respondents opposed the Petition and the application through Grounds of Opposition dated March 3, 2022.

40. It was their case that The National Treasury and Planning Ministry derives its mandate from Article 225(1) of the Constitution and to that extent, there has not been persistent material breaches of the measures under legislation.

41. It was his deposition that the budget for FY 2021/22 was prepared in strict adherence of the Public Finance Management Act and Chapter 12 of the Constitution.

42. He deposed that the Controller of Budget does not operate on its whims but within set down constitutional and statutory framework under Articles 207 as read together with Article 228 (4) to (6) of the Constitution and Section 5 of Controller of Budget Act, 2016.

43. He further pointed out that the role of the Controller of Budget is facilitative and once approval of expenditure is given they cannot question the manner in which the 1st Respondent intends to use the funds as that function belongs to the office of the Auditor General and the Senate.

44. It was his case that if the Petitioner is granted the orders sought, the Court would contravene the sovereignty of the people, an unconstitutional situation.

The Submissions: 45. Miss Chibole, Counsel for the 2nd to 6th Respondents further pitched its case through written submissions dated March 10, 2021.

46. She submitted that the prayer to stop funds to the IEBC cannot be granted since transfer of funds to a state Organ could only be stopped through legislation.

47. It was her case that the budget for 2021/2022 was prepared in accordance with the Public Finance Management Actand the Constitution and all the prerequisite constitution requirements were duly followed.

48. She pointed out that the procurement process had already begun and money spent. In asserting the fact that the Controller of Budget could not question the manner the IEBC uses the funds allocated reliance was placed on the South Africa decision in Affordable Medicines Trust vs. Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (Affordable Medicines) where it was observed;The exercise of public power must therefore comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution. It entails that both the legislature and the executive ‘are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law’. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power.

49. To buttress the propriety of the date of 9th August, 2022, she referred the Court to Andrew Kiplimo Sang Muge & 2 others v Independence Electoral and Boundaries Commission & another[2017] eKLR and in John Harun Mwau & 3 others v Attorney General & 2 others [2012] eKLR where the Court emphasized that elections must be held on the second Tuesday in August in every fifth year.

50. In faulting the Petitioner’s case, she implored that the country cannot have different election dates for the President and Deputy President and that of the Governors and Members of the County Assemblies. Support was found inAndrew Kiplimo Sang Muge & 2 others v Independence Electoral and Boundaries Commission & another [2017] eKLR where it was observed that;Harmony and consistency in constitutional provisions must dictate that the election date for all the elections of the general election under the Constitution be held as stipulated “on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.

51. In conclusion, she urged that the Petition be dismissed.

The 6th Interested Party’s case: 52. The 6th Interested Party opposed the Petition through Grounds of Opposition dated 11th February, 2022. It was its case that the Petitioner misinterpreted the Constitution in stating that the IEBC was wrong in deciding the election date. It was its position that the election date is a constitutional edict fixed under Article 136(2)(a) and the IEBC has no power to vary this date.

53. It was its case that the Petitioner failed to apply the rule of harmony in constitutional interpretation regarding repeat elections following a successful election Petition. It urged that the presidential election cycle is similar to that of the Member of Parliament, County Governors and their deputies and for the County Assemblies as set out respectively in Articles 136(2)(a), 101, 180(1) and 177 (1) (a) of the Constitution.

54. In rebutting the prayer for IEBC to cancel procurement, it stated that the Petitioner failed to plead with precision which specific action he wants the Court to invalidate.

55. It was its case that the Petition is bad in law and ought to be dismissed.

The Submissions: 56. The 6th Interested Party filed written submissions dated 11th February, 2022. The same were highlighted by Counsel Miss Michuki, where she emphatically submitted that the date of the election date is cast in stone and binding on IEBC.

57. She hastened to add that the term of the President starts from the start of the term and not at the time of swearing in. She implored the Court to apply the harmonization principle in the case and be grounded by Article 2 of the Constitution.

58. It was her case that the IEBC has no role in determining election date as it is something ordained by the Constitution at Article(2)(a) as read with Article 142(1).

59. In urging the Court to interpret the Constitution in a harmonious manner in making the finding that the election date is decreed as 9th August, 2022, the 6th Respondent reiterated the decisions in The Speaker of The Senate & another v Honourable Attorney General & others[2013] eKLR, Advisory Opinion No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR Court of Appeal in the case of Attorney General & another v Andrew Kiplimo Sang Muge & 2 others[2017] eKLR.

60. In contesting the argument that the date for election of the President is affected by the repeat presidential elections, it was submitted that the correct computation of the term begins as contemplated by Article 136(2) of the Constitution.

61. She submitted that after the repeat elections, the 5-year presidential term was less than 5-years, but there is no provision for extension of time in order to cover a full 5-year term.

62. It was submitted that the Constitution does not provide expressly for a 5-year constitutional term for the office of the President; rather, it provides for events which mark the beginning and end of such a term which ordinarily follow a 5-year cycle.

63. It was further submitted that allowing the Petition would have the effect of extending the term of the office of the President, beyond the period envisaged by Article 142(1) as read with Article 136(2)(a) of the Constitution.

64. It also added that the change in date would introduce new parameters for determination of the date of presidential election that are not known by the Constitution.

65. He prayed that the Petition be dismissed.

Issues for determination: 66. From the foregoing, the issues that arise for determination are: -i.A general overview of the principles of constitutional interpretation.ii.An appreciation of Kenya’s election cycle in the new constitutional dispensation.iii.Constitutionality of 9th August, 2022 as the date for General Election.iv.Whether the procurement of election materials was done outside the precincts of the law.

67. I will hence deal with the issues sequentially.a.A general overview of the principles of constitutional interpretation:

68. From the outset, it is evident that the contest among the disputants herein is interpretational in nature in respect of the election date and President’s and Deputy President’s term in office as prescribed by the Constitution. It is, therefore, necessary to firstly interrogate how the Constitution is interpreted.

69. How the Constitution is given meaning has been the subject of analysis of various decision of Courts of superior jurisdiction. In Nairobi High Court Constitutional Petitions No. 33 and 42 of 2018 (Consolidated) Okiya Omtatah Okoiti v Public Service Commission & 73 others, this Court made a compilation of the subject in the following terms: -54. As regards the interpretation of the Constitution, suffice to say that the Constitution itself gives guidelines on how it ought to be interpreted. That is in Articles 20(4) and 259(1).

55. Article 20(4) requires Courts while interpreting the Bill of Rights to promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom and the spirit, purport and the objects of the Bill of Rights. Article 259(1) command Courts to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights, permits the development of the law and contributes to good governance.

56. Courts have also rendered how the Constitution ought to be interpreted. The Supreme Court in a ruling rendered on 21st December, 2011 in In the Matter of Interim Independent Electoral Commission [2011] eKLR discussed the need for Courts, while interpreting the Constitution, to favour a purposive approach as opposed to formalism. The Court stated as under: -(86)…. The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.(87)In Article 259(1) the Constitution lays down the rule of interpretation as follows: “This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the Courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights.(88)…… Article 10 states clearly the values and principles of the Constitution, and these include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.(89)It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.

57. On the principle of holistic interpretation of the Constitution, the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2015] eKLR affirmed the holistic interpretation principle by stating that:This Court has in the past set out guidelines for such matters of interpretation. Of particular relevance in this regard, is our observation that the Constitution should be interpreted in a holistic manner, within its context, and in its spirit.

58. The meaning of holistic interpretation of the Constitution was addressed by the Supreme Court in In the Matter of the Kenya National Human Rights Commission, Sup. Ct. Advisory Opinion Reference No. 1 of 2012; [2014] eKLR. The Court at paragraph 26 stated as follows: -…But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.

59. In a Ugandan case in Tinyefuza v Attorney General, [1997] UGCC 3 (25 April 1997) the Court was of the firm position that the Constitution should be read as an integrated whole. The Court observed as follows: -…. the entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution…..

60. In Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR, the Court of Appeal summarized the various principles of constitutional interpretation as follows:(21)…. Before the High Court embarked on the interpretation of the contentious provisions of the Constitution, it restated the relevant principles of interpretation of the Constitution as extracted from case law thus: - that as provided by Article 259 the Constitution should be interpreted in a manner that promotes its purposes, values and principles; advances rule of law, human rights and fundamental freedoms and permits development of the law and contributes to good governance.

that the spirit and tenor of the Constitution must preside and permeate the process of judicial interpretation and judicial discretion.

that the Constitution must be interpreted broadly, liberally and purposively so as to avoid “the austerity of tabulated legalism.

that the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other as to effectuate the great purpose of the instrument (the harmonization principle).

These principles are not new. They also apply to the construction of statutes. There are other important principles which apply to the construction of statues which, in my view, also apply to the construction of a Constitution such as presumption against absurdity – meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result - meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result, - meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result – meaning that a court should find against a construction that produces artificial result and, lastly, the principle that the law should serve public interest –meaning that the court should strive to avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise. Lastly, although the question of the election date of the first elections has evoked overwhelming public opinion, public opinion as the High Court correctly appreciated, has minimal role to play. The court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be guided by the letter and spirit of the Constitution.

118. In Advisory Opinion Application No. 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, the Supreme Court spoke to purposive interpretation of the Constitution. It had the following to say: -…The approach is to be purposive, promoting the dreams and aspirations of the Kenyan people, and yet not in such a manner as to stray from the letter of the Constitution.

119. The Court went ahead and gave further meaning of the term purposive by making reference to the decision in the Supreme Court of Canada in R -vs- Drug Mart (1985) when it made the following remarks: -The proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect...to recall the Charter was not enacted in a vacuum, and must therefore... be placed in its proper linguistic, philosophic and historical contexts.

120. The Supreme Court, while referring to the South African Constitutional decision in Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC), went further and stated that a purposive approach is ‘a generous interpretation... suitable to give individuals the full measure of the fundamental rights and freedoms referred to.’

121. The Learned Judges of the Supreme Court further agreed with the South African Constitutional Court in S -vs- Zuma(CCT5/94) 1995 when it stated that in taking a purposive approach in interpretation, regard must be paid to the legal history, traditions and usages of the country concerned.

122. The Supreme Court embellished the need to pay attention to legal history while interpreting not only the Constitution but also statutes. It observed as follows: -8. 11This background is, in my opinion, a sufficient statement on the approach to be taken in interpreting the Constitution, so as to breathe life into all its provisions. It is an approach that should be adopted in interpreting statutes and all decided cases that are to be followed, distinguished and for the purposes of the Supreme Court when it reverses itself.

123. The Court of Appeal while dealing with holistic interpretation of the Constitution in Civil Appeal 74 & 82 of 2012, Centre for Rights Education and Awareness & Another v John Harun Mwau & 6 others [2012] eKLR stated that the entire Constitution must be read as an integrated whole and no one particular provision destroying the other so as to effectuate harmonization principle. 70. With the above background, the next issue follows: -

(b) An appreciation of Kenya’s election cycle in the new constitutional dispensation: 70. Election cycle is in the first instance appreciated from the vantage point that leadership is representative in nature. It is thus necessary that electoral process is regulated to create certainty and for leaders to gain legitimacy through a fair process. To that end, the Constitution and legislation variously regulate elections involving universal suffrage.

71. The Constitution dedicates Chapter Seven to ‘Representation of The People’. It sets out the general principles of the Electoral Process as follows;CHAPTER SEVEN – REPRESENTATION OF THE PEOPLEPART 1 – ELECTORAL SYSTEM AND PROCESS 81. General principles for the electoral system.The electoral system shall comply with the following principles—(a)freedom of citizens to exercise their political rights under Article 38;(b)not more than two-thirds of the members of elective public bodies shall be of the same gender;(c)fair representation of persons with disabilities;(d)universal suffrage based on the aspiration for fair representation and equality of vote; and(e)free and fair elections, which are—(i)by secret ballot;(ii)free from violence, intimidation, improper influence or corruption;(iii)conducted by an independent body;(iv)transparent; and(v)administered in an impartial, neutral, efficient, accurate and accountable manner.

72. The Constitution then delegates to Parliament the duty to legislate on elections in Article 82.

73. Having said that, it is important to underscore that the term ‘election cycle’ is derived from the fact that elections are carried out at certain regular intervals.

74. It is, hence, necessary to interrogate the election cycle in Kenya with respect to General elections and subsequently establish the President’s and Deputy President’s constitutional term in office.

75. Article 260 of the Constitution does not define ‘presidential election’. The Elections Act No.4 of 2011, however, defines the term as follows;“Presidential election” means an election of a President in accordance with Articles 136, 139(1)(b) and 146(2)(b) of the Constitution.

76. For purposes of this suit, Article 136 of the Constitution provides for the election of the President in the following terms: -136. Election of the President

(1)The President shall be elected by registered voters in a national election conducted in accordance with this Constitution and any Act of Parliament regulating presidential elections.

77. Article 136(2) of the Constitution then embellishes the foregoing provision by giving the dynamics revolving around the President’s election. It provides as follows: -(2)An election of the President shall be held—(a)on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year; or

78. In Petition E369 of 2020, Kennedy Irungu Ngodi & another v Mary Waithera Njoroge & 11 others [2021] eKLR, this Court, upon analysing the election of President, Governors, Senators, Members of Parliament, Women Representatives and Members of County Assemblies, made remarks on election date in the following manner: -152. To be able to render the position, it is critical to understand the election cycle in Kenya. The cycle is in respect of the elections for the President, Members of Parliament, Governors and Members of the County Assemblies.

153. Article 136(2)(a) of the Constitution states as follows: -(2)An election of the President shall be held-(a)on the same day as general election of Members of Parliament, being the second Tuesday in August every fifth year.

154. Article 93(1) of the Constitution establishes the Parliament of Kenya which consists of the National Assembly and the Senate. Article 101(1) of the Constitution is tailored as follows: -1. A general election of the members of Parliament shall be held on the second Tuesday in August every fifth year.

155. Article 102(1) of the Constitution prescribes the term of Parliament in the following manner: -(1)The term of each house of Parliament expires on the date of the next general elections.

156. Article 180(1) of the Constitution states as under: -The County governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.

158. Article 177(1)(a) of the Constitution provides that: -(1)A county assembly consists of –(a)members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;

159. And, Article 177(4) of the Constitution further provides that: -A county assembly is elected for a term of five years.

160. A common thread in the term of office for the President, Members of Parliament, Governors and Members of the County Assemblies is five years and that, elections to those offices are held on the second Tuesday of August every fifth year. That is the electoral cycle in Kenya.

161. Inevitably, by operation of the law, the President, Members of Parliament, Governors and Members of the County Assemblies relinquish their political positions on the date of the next general elections. It, therefore, means that the President, Members of Parliament, Governors and Members of the County Assemblies do not have to explicitly resign as the law renders them out of office on the second Tuesday of August every fifth year, of course except the President during the temporary incumbency under Article 134 of the Constitution.

79. Article 259 of the Constitution stipulates how computation of time is to be done. It provides as follows;259. Construing this Constitution

(5)In calculating time between two events for any purpose under this Constitution, if the time is expressed—(c)as years, the period of time ends at the beginning of the date of the relevant year that corresponds to the date on which the period began.

80. The foregoing brings to fore the fact that computation of time of the succeeding President begins from the point when the incumbent ceases to hold office. That time is constitutionally decreed as second Tuesday in August in every fifth year.

81. The Court of Appeal discussed the foregoing provision in Civil Appeal 147 of 2017, Attorney General & another v Andrew Kiplimo Sang Muge & 2 others [2017] eKLR as follows: -With the formula and applying Article 259 (5) (c) aforesaid the question of subsequent elections becomes an easy one to determine. Applying it, the second Tuesday in August, in the fifth year from 4th March, 2013 fell on 8th August, 2017. “The fifth year” would mean that each election year begins in August every second Tuesday and ends on the eve of the second Tuesday in August of the subsequent year to make 1 year. Therefore, counting 365 days for 1 year and taking into consideration the exact month from one year to the subsequent year, the 1st year would be counted from 8th August 2017 to 8th August 2018; 2nd year from 8th August 2018 to 8th August 2019; 3rd year from 8th August 2019 to 8th August 2020; 4th year would be from 8th August 2020 to 8th August 2021; 5th year would be from 8th August 2021 to 8th August 2022.

82. Deriving from the foregoing, any incident that takes place including disputed presidential elections that eats into the succeeding President’s five-year term will not adjust the date of the next presidential elections.

83. Additionally, the Constitution makes it unnegotiable under Article 136(2)(a), 101(1), 102(1), 180(1), 177(1)(a), 177(4) that as far as general election is concerned, all elective positions in Kenya must be held simultaneously. As such, the President’s Election in every general election cannot be divorced from the rest of the elective positions.

84. It is a matter of constitutional underpinning that timelines set by the Constitution cannot be varied. The obtaining legal position was affirmed by the Supreme Court in Civil Application No. 6 of 2014 George Mike Wanjohi -vs- Steven Kariuki & 2 others [2014] eKLR. In the case, the Court was confronted with the question as to whether it could stop the constitutionally triggered timeline under Article 101(4) of the Constitution which made it a requirement that a by-election shall be held within 90 days of the occurrence of a vacancy in the office of a member of National Assembly elected under Article 97(1)(a) or (b) or of the Senate elected under Article 98(a). In making the finding that constitutional timelines must be kept sacred, the Learned Judges made the following finding: -(45)Consequently, any statutory process or act done ultra vires the provisions of the Constitution, this Court will not hesitate to declare them void. Hence, a stay order will not be tantamount to stopping a constitutional process. We hasten to add that what the Court cannot do is to extend the 90 days period within which the election should be held. That period is sacred as it is provided for in the Constitution and even this Court, a creature of the Constitution, cannot extend it.

85. As a result, therefore, every subsequent date of general election cannot be adjusted outside the second Tuesday in August, in every fifth year despite any intervening circumstances that may occur before the succeeding president is sworn in.

86. The fixed nature of the general election has a historical meaning. Kenyans decided to constitutionally anchor general election date for a good reason. This was discussed by the Court of Appeal in Attorney General & another v Andrew Kiplimo Sang Muge & 2 others case (supra) as follows: -There is sufficient historical justification for the adoption of the formula “the second Tuesday in August, in every fifth year” in Articles 101,136(2) (a), 177(1)(a) and 180(1) of the Constitution. Section 59 of the former Constitution vested in the President the sole power to dissolve and prorogue Parliament. Elections could not be called unless the President had dissolved Parliament. During this period the election date was regarded as the Executive’s “secret weapon”, unleashed only at a time appropriate to the Executive. It is evident from the archives of Parliament that, because of this, the clamour for a fixed election date was already growing as far back as 1995. This clamour was sustained throughout the early periods of the constitution making process. See Kenya National Assembly Official Record (Hansard) of 21st March 1995, 14th October 1997,11th October 2000, 13th December 2001, 25th July 2002 and 5th November 2008. The Constitution of Kenya Review Commission (CKRC) reports also confirm that the public made submissions before for the introduction of a fixed, predictable and determinable election date as part of electoral reforms. The Report Of the Constitution Of Kenya Review Commission (KRC), Volume One; The Main Report, (2003) observed that timing of the general election was a critical component of electoral process and that the President should not have the power to determine the election dates. The people of Kenya, according to the report, demanded that future elections be held regularly, in a predictable, transparent and efficient manner. The Commission ultimately recommended that;“…..the General Election should be held on the first Tuesday of the second full week of August after every five years” and that,“…..the President shall serve for a maximum of a two five-year terms.”(See page 184 of the Report).The approach to define precisely the date of election as proposed in these reports and adopted in the Constitution is not unique to Kenya. For example the United States, Canada and Sweden, among other nations have a fixed term and fixed election dates for political elective positions. On 23rd January, 1845, in the case of the United States of American, Congress passed a law establishing that the day for choosing presidential electors would be every four years on “the first Tuesday after the first Monday in November.” See Acts of the Twenty-Eighth Congress of the United States, Statute II Chapter 1. Following the amendment and having received Royal Assent on May 3rd, 2007, the Canadian Elections Act requires that, starting 19th October, 2009, each general election would take place on the “third Monday in October in the fourth calendar year after the previous poll,” See section 56. 1(2) of Bill C-16. In Sweden, likewise, the Constitution requires general election to be held on “the second Sunday of September” See section 3 of the Sweden Elections Act of 2005. Back to Kenya, apart from the CKRC Report, we are unable to find any discussion in any subsequent reports of the Committee of Experts or in the parliamentary Hansard as to what informed the choice of “the second Tuesday, in August every fifth year” as our election date. It is however clear to us, in the context of past practice, where elections have traditionally been held after every five years in the month of December i.e. 1992, 1997, 2002 and 2007, though nothing in law fixed December as the election month, that the people wanted to maintain the five year election cycle, but imposing a definite and predictable election date.

87. The rationale for having a fixed general election for all the six elective position was further discussed by the Court in Attorney General & another v Andrew Kiplimo Sang Muge & 2 others case (supra) as under: -…it must be stressed that the electoral reforms introduced by the Constitution of Kenya, 2010 were aimed at ensuring a regular, free and fair exercise of the right to vote. The definite and predictable election date (“the second Tuesday in August of every fifth year”) was intended to champion Article 38 which provides for political rights of the citizens. Article 101 (1) as read with Article 136 (2), 177(1) & 177(4), and 180(1) ensure such regularity by making certain that the election date remains the same for all the six elective seats.’The people considered the importance, convenience and the cost-effectiveness of holding general elections together for all positions once every fifth year from the last general election.We observe, ultimately that the making and implementation of a new Constitution must result in many transitional challenges and sacrifices. The 2010 Constitution was no exception.

88. It can be discerned that the Petitioner is calling upon this Court to adjust the constitutionally appointed date for general elections. Such is an untenable invitation. Article 2(3) of the Constitution frowns upon any attempt to have any constitutional provision declared unconstitutional in the following manner;2. Supremacy of this Constitution(3)The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

89. In the above case, the Court of Appeal while recognizing the supremacy of the decision of the people of Kenya in promulgating the new Constitution discussed the foregoing superiority of the Constitution as follows: -It must follow, as ordained by Article 2(1) and (4) that the Constitution being the supreme law, no Court can question the validity or legality of any of its provisions and any law that is inconsistent with it is void to the extent of the inconsistency. In line with this, it has consistently been emphasized that the Constitution cannot subvert itself.

90. The above discussion, therefore, affirms the position that the electoral cycle in Kenya begins on the second Tuesday of August of the fifth year of the preceding general election.

(c) The constitutionality of 9th August, 2022 as the date for General Election: 91. This issue has by and large been resolved upon the determination of the unadjustable nature of election date. The 9th August, 2022 is constitutionally the second Tuesday of August of fifth year since the last general election.

92. In Petition 360 of 2017, Joel Kiprono Rop -vs- Independent Electoral & Boundaries Commission & 5 others [2017] eKLR, the challenge before the Court was whether holding of general elections on 8th August, 2017 was unconstitutional.

93. The Petitioner’s case was that the general election of 8th August, 2017 was unconstitutional on the grounds that the term of five years of the then incumbent government had not expired since general elections were held in March 2013.

94. On the foregoing, the Petitioner was of the persuasion that next General election should be due about the same time in 2018 when the term of office for elective positions will have come to an end.

95. In refuting the invitation that the next general elections would fall on March 2018, the Court stated as follows;41. The Constitution does not say that the general elections be held at the end of the fifth year, or at the end of the term. It simply states that the general elections be held on the second Tuesday in August in every fifth year. This is simple clear and unambiguous language. The petitioner’s contention that the general elections should be held at the end of the term of five years is with respect not in the Constitution.

42. It is also important to note that the Constitution only gives the day and month when the general elections should be held and not the date. Dates will vary each election cycle depending on the calendar year. Where the words or phrases used in the Constitution or Act of parliament are clear and unambiguous they must be given their primary, natural or ordinary meaning.

43. The phrase used in the Constitution namely; on the second Tuesday in August in every fifth year must be read to mean general elections should be held in the fifth year and not at the end of the fifth year as contended by the petitioner. If the contention by the petitioner was to be stretched to its logical conclusion, it would lead to a misinterpretation of the Constitution. I say so because there is nothing in the expression “on the second Tuesday in August in every fifth year” to justify it acquiring a different meaning than that assigned to it by the Constitution.

44. The general elections were held on 4th March 2013. A simple arithmetic shows that the second Tuesday in August in the fifth year falls on 8th August this year. That date is in the fifth year following the previous election. No other construction can be given to the provisions relating to the general elections without distorting the purpose and principles of the Constitution.

45. It must not also be lost, that Article 102 of the Constitution provides that the term of each House of Parliament expires on the date of next general election. This means the terms of the National Assembly and Senate expire on the date of the next general election is held. That conclusively brings the Parliamentary term to an end on the date elections are held next. The second Tuesday of August in the fifth year is 8th August 2017.

46. Article 142 states, with regard to the Presidential term, that the president shall hold office for a term beginning on the date on which the president was sworn in, and ending when the person next elected President in accordance with Article 136(2) (a), is sworn in. Article 136(2) (a) is clear on the day and month of holding general elections.

96. This Court associates with the above findings and reiterates that that the Constitution is clear and unambiguous on the election date. In absence of clear provisions dictating how election date is to be interfered with in the event of delay in swearing of the President, any invitation to have the Court change the election date is an encroachment on sanctity of the Constitution.

97. In applying the harmonization principle on the election date, the Court further observed as follows: -47. As stated in Tinyefuze v Attorney General of Uganda (supra) and Attorney General of Tanzania v Rev. Mtikila (supra), the entire Constitution must be read together as an integral whole no one provision destroying the other but each sustaining the other. Only then will the Constitution achieve its principles and purposes.

48. All provisions of the Constitution relating to both the general elections and terms of Parliament and president respectively, point to one undeniable fact, that the general elections be held on the second Tuesday in August in every fifth year. The term of parliament expires on the Election Day while that of the President ends on the swearing in of the person elected next as president.

49. Applying the rule of harmony, completeness and exhaustiveness, in construing these constitutional provisions, I don’t see any contradiction in any of them as to when the general elections should be held or terms of both Parliament and Presidency should come to an end. As was stated by Chief Justice Mutunga in the case of Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights and Democracy & 11 others ([2014] eKLR no provision of the Constitution is unconstitutional. Holding otherwise in this petition would amount to artificial interpretation of the Constitution.

98. In sum, this Court finds no difficulty in holding that the election date of 9th August, 2022 is constitutional.

(d) Whether the procurement of election materials was done outside the precincts of the law: 99. This issue was pegged on the position that the scheduled date of the general election in Kenya, being the 9th August, 2022, is not in tandem with the Constitution. This Court has, however, found to the contrary.

100. The Petitioner’s position cannot, hence, hold. The finding on constitutionality of the 9th August 2022 as the general election date for all the six elective seats renders every decision made in preparation of the said election proper and legally firm unless specifically proved otherwise, which is not the case in this matter.

101. Closely related to the foregoing issue is the prayer that the IEBC be compelled to hire a Chief Executive Officer. The prayer is now spent since there is a substantive holder of the Office.

Disposition: 102. In the end, the inevitable conclusion is that the Petition and the application are both without merit and are hereby dismissed.

103. In view of the public interest nature of the Petition, there will be no orders as to costs.

104. It is so ordered.

DELIVERED, DATED and SIGNED at NAIROBI THIS 5TH DAY OF MAY, 2022. A. C. MRIMAJUDGEJudgment virtually delivered before:Hon. Senator Paul Njoroge Ben, Petitioner in person.Mr. J. B. Macharia, Counsel for the 1st Respondent.Miss. Chibole, Counsel for the 2nd to 6th Respondents.Miss. Muchoki for Miss Kituku, Counsel for the 6th Interested Party.