[2022] KEHC 472 (KLR)

Ben v Independent Electoral and Boundaries Commission & 5 others (Petition E006 of 2022) [2022] KEHC 472 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 472 (KLR)

Republic of Kenya

In the High Court at Meru

Petition E006 of 2022

EM Muriithi, J

June 3, 2022

Between

Joseph Karithi Ben

Petitioner

and

Independent Electoral and Boundaries Commission & 5 others

Respondent

Ruling

[1]A preliminary objection dated 2/6/2022 was taken to the application and petition herein, on the ground that the issue raised in the petition was out of the jurisdiction of the court for three, principal reasons that:-a.It was a matter of dispute on nominations which is the preserve of the IEBC in terms of article 88 (4) (e) of the Constitution.b.The issue of degree qualification of the 3rd respondent is res judicata in view of the judgement in view in petition No 7 of 2018;c.In any event, the question of the 2rd respondent’s qualification is Sub-judice by notice of preliminary filed proceedings in E122 of 2022 pending before High Court at Nairobi.

[2]The court has heard counsel of the petitioner, and for the respondents in the absence of counsel for the 1st and 2nd interested parties who did not enter appearance.IEBC Jurisdiction in nomination matter.

[3]Article 88 (4) (e) of the Constitution provides as follows:-

[4]The question that arises is whether this petition is a nominations dispute. The Elections Act define nomination and nomination day as follows:“nomination" means the submission to the Commission of the name of a candidate in accordance with the Constitution and this act;nomination day" in respect of an election, means the day gazetted at least sixty days before an election by the Commission as the day for the nomination of candidates for that election."

[5]The Elections Act 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.[Act No 1 of 2017, s 23]

[6]The doctrine of constitutional avoidance would appear to apply to this matter. Indeed, in the Speaker of the National Assembly v James Njenga Karume [1992] eKLR (Kwach, Cockar (as he then was) & Muli, JJA.) it was held:“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”The court only enforces the principle that where the Constitution or statute has made provision form the redress of a specific matter that procedure should be strictly followed.

[7]The petition and the application by Notice of Motion dated 31/5/2022 seeks the principal final orders and conservative order directing and restricting the 1st and 2nd respondents from accepting the nomination papers, processing nomination certificates and/or clearing the 3rd respondent herein to contest from the position of Governor of the County of Meru”, based on declaration sought in the petition that he does not meet the basic academic qualifications, of holding a degree.

[8]This is clearly a nomination’s disputes with former of the IEBC resolution of disputes mandate of article 88(4) (8) of the Constitution. See Francis Gitau Parsimei & 2 others v The National Alliance Party & 4 others(2012) eKLR.

Whether the issue is res-judicata [9]Section 7 of the Civil Procedure Act on res judicata provides as follows:“7. Res judicata

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.[L N 22/1984]

[10]Counsel for the 3rd respondent relied on the principle established in Henderson v Henderson (1843) 67 ER 313 that where a party could with due diligence have raised an issue in previous proceedings, it will be barred from raising that issue on the doctrine of res judicata even if it did not take up the issue the previous proceedings. The principle was adopted in Explanation 4 of section 7 and also applied in our own Court of Appeal decision in Mburu Kinyua v Gichini Tuti, (1976-80) KLR 790.

[11]However, on the constitutional application before the court, I do not feel confident that there has been a final decision on the issue of qualification, which is impugned in the present petition, as distinguished from possession of the qualification. I would reserve for determination in the hearing of the main petition, the issue whether the matter raised in this petition is res judicata on the basis of the decision in Nairobi HC Petition No 7 of 2018.

Judgment in rem [12]However, on the question of whether there exists a judgment in rem in the determination of the two – judge bench in it is instructive to observe that section 44 of the Evidence Act on judgments in rem is a rule of evidence that such a final judgment is conclusive proof of the determination it makes as to legal character of any person.44. Judgments in rem(1)A final judgment, order or decree of a competent court which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is admissible when the existence of any such legal character, or the title of any such person to any such thing, is admissible.(2)Such judgment, order or decree is conclusive proof—a.that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;b.that any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;c.that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;d.that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.”I would find that there is a judgment on the legal character of the 3rd respondent as a degree holder.

[13]One of the order granted by the 2-judge bench (Odunga & Mativo, JJ.) in Francis Mithika Linturi v Ethics & Anti-Corruption Commission & 3 Others. Nairobi Pet No 7 of 2018 [2018] eKLR at Paragraph 193 (a) of the judgment is that:-“An order of mandamus compelling the 3rd respondent, the University of Nairobi, to award to the petitioner the degree of Bachelor of Laws Honours, upper Division, an order prohibiting nullification of the said degree unless and until done process leading to the nullification of the said degree is lawfully adhered to.”

[14]Is the determination in paragraph 193 (a) of the Judgment set above a judgment in rem? section 44 of the Evidence Act provides that judgment in rem is conclusive proof of “legal character” which if granted commences when such judgment, order or degree came into operation”, as follows:“that any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person”

[15]The Judgment that the 3rd respondent was entitled to the award of the degree of Bachelors of Law Honours Upper Division is a judgement in rem and it gives the legal character of qualification to a degree holder, which entitles the applicant to hold the state office set out in section 22 of the Elections Act. Until a decision of competent court takes away that legal character the applicant is entitled to enjoy the fruits that come with the declaration of such character under section 44 of the evidence Act, to that effect that this state remains until the eventuality identified by the said judgment, hearing identification by due process, occurs.

[16]Who is to undertake the process of identification? It is the University of Nairobi, of course, and the court may make appropriate declarations on evidence. And this has not been done. The 3rd respondent is validly a person with the legal character of holder of a Bachelor of law, degree Honours, upper class for the date of issue of the order for mandamus by this court on 18/5/2018.

[17]On what basis, therefore, could the court give any conservatory order to stop anyone from relying on the legal status of the 3rd respondent as a law degree holder. I find that none exists, on the basis of the conclusive proof provision of section 44 (2) of the Evidence Act.

Whether the matter raised in this petition is sub-judice? [18]The previous proceedings cited as basis of the objection or sub-judice rule in paragraph 8 and 9 of the preliminary objection were not attached. The court is subsequently not able to state that the claim herein is barred by the sub-judice rule and should be stayed in accordance with section 6 of the Civil Procedure Act.

Delay and final orders [19]The court would readily agree, as urged by the respondents, that delay defeats equity and the court must not give final orders at the interlocutory stage except in the clearest of cases.

Determination [20]The court finds that the issue in the petition and interlocutory application for conservatory orders partly raises a nomination dispute the court is bound by article 88 (4) (e) of the Constitution to defer to the prior jurisdiction of IEBC. There is no suggestion that the court has no jurisdiction under article 165 and 258 to determine an issue of interpretation of the Constitution even when such an issue of eligibility to contest for an office.

[21]At this stage of hearing, however, the court is not able to hold that it has no jurisdiction under articles 165 and 258 of the Constitution to interpret the Constitution and to grant the declaration sought in Prayer A of the Petition dated 31st May 2022 “that the 3rd respondent does not meet the basic academic qualifications of holding a degree from a University recognized in Kenya pursuant to article 180 and 193 of the Constitution of Kenya 2010 and section 22 (2) the elections Act, 2011 to vie for the position of Governor and Deputy Governor of Meru County in the forthcoming election of 9th August 2022”.

[22]The court is also not able to hold that the determination by the two-judge in Nairobi HC Petition no 7 of 2018 operates res judicata to bar the petition herein. Indeed, the decision of the court left the matter of nullification of the petitioner degree in accordance with the law. The court will, therefore, reserve the right of the petitioner to proceed with the hearing of the petition, while allowing the IEBC to deal, in exercise of its constitutional mandate, the process of nomination for candidate to the August 9, 2022 elections.

[23]The preliminary objection succeeds to the extent only that the issues of resolution of disputes of nominations nature rests with the IEBC. The Notice of Motion dated 31/5/22 will be struck out as it seeks to bar the exercise of the constitutional mandate of IEBC to deal with nominations dispute.

Conclusion [24]While the court accepts that the interpretative jurisdiction of the court under articles 165 and 258 would exist to allow the court deal with a question whether a particular candidate is qualified under the Constitution and the Elections Act to vie for a particular position in the election, the court also considers that there is an aspect of that determination that is covered by the law and process of nomination. The provisions of the Constitution and Elections Act, respectively under article 88(4) (e) and 74 thereof, place jurisdiction to deal with disputes around the nominations with the IEBC, and the court on the principle of constitutional avoidance and the rule in the Speaker of the National Assembly v Karume (1992) eKLR defers to the IEBC to deal with the nomination process and any dispute arising therefrom.

[25]On hearing the petition under its interpretative jurisdiction, the court may make the declaration of ineligibility sought in Prayer A of the petition. With such determination, the court might make consequential orders including invalidating the nomination, if it shall already have been made of the 3rd respondent to vie for the position of Governor of Meru County. An election petition upon the elections, if the 3rd responder were the successful candidate, may also achieve the same result. The cost involved would be a small price to pay against the enforcement of the 3rd respondent’s political rights under article, 38 of the bill of rights under the Constitution.

[26]The court is mindful that the nominations process has been initiated and the nomination day within the meaning of the Elections Act has been set by gazettement in official Kenya Gazette. The respondents have also made corresponding arrangements with, no doubt, time and resource investment.

[27]Without expressing a verdict on the merit of the petition, the court finds that greater harm and hardship will be occasioned by the stay of the nominations exercise for in respect of the particular 3rd respondent herein or for all the candidates, if that were the appropriate relief for purposes of removal of prejudice for any of the candidates, than will be occasioned by refusal of the conservatory order, which is clearly sought at the eleventh hour.

[28]The petition would not be rendered nugatory as the petitioner has other avenues for challenging the eligibility of the 3rd respondent as candidate for the position of Governor. Let the process of nomination proceed and the petitioner may pursue other available avenues for redress before the elections by this or other petition, or after the elections by election petition.

Orders [29]Accordingly, for the reasons set out above, the court will let IEBC conduct the nominations in accordance with its mandate under article 88 (4) (e) of the Constitution and section 74 of the Elections Act.

[30]If the petitioner is still aggrieved by the decision of the IEBC, he may set the petition down for hearing and the court upon hearing of the petition may cancel the nomination before the Election Day on the 9th August 2022, if it determines that 3rd respondent is not qualified to vie for the position of Governor. Or by petition after the results, the election court may declare that the 3rd respondent, if be the successful candidate at the elections, was not validly elected upon a petition in that behalf.

[31]Consequently, the court will direct that the Preliminary Objection is successful to the extent that disputes, such as a part of which is before the court, relating to nomination of candidates is the preserve of the IEBC under article 88 (4) (e) of the Constitution and section 74 of the Elections Act.

[32]The Notice of Motion dated 31st May 2022 is struck out. However, the petition shall continue on a date to be fixed in consultation with the parties, after the respondents file their replying affidavits or other response to the petition within seven (7) days from today. The petition shall be mentioned for directions as to hearing on 9/6/2022.

[33]Costs in the Cause.Order Accordingly.

DATED AND DELIVERED ON 3RD DAY OF JUNE, 2022EDWARD M. MURIITHIJUDGEAppearancesMr Otieno for the petitioner.Mr Mwongela with Ms Wangui for the 1st and 2nd respondentsDr Muthomi Thiankolu with Mr Kiogora Mugambi, Ms Linda Kiome, Ms Gikundi, Mr S Karanja and Julius Kwamboka for the 3rd and 4th respondents.N/A for the Interested Parties.