[2017] KEHC 4357 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION APPEAL NO. 110 OF 2017

BONIFACE KIARIE GITAGIA……..……..……APPLICANT/APPELLANT

-VERSUS-

INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION ………………..…….........RESPONDENT

R U L I N G

1. On 19th June, 2017 the Appellant Boniface Kiarie Gitagiafiled an appeal from the decision of the Independent Electoral and Boundaries Commission (IEBC). His main ground was that the decision of the IEBC was against the weight of the evidence and could not be sustained for various reasons stated in the Memorandum of Appeal. Contemporaneously with the appeal he filed a Notice of Motion seeking to stay the said decision pending the hearing and determination of his application and also to restrain the IEBC from publishing the names of candidates vying for the senatorial position in Trans Nzoia County.

2. The Respondent IEBC filed a Notice of Preliminary Objection dated 22nd June, 2017 on grounds that the court lacks jurisdiction to entertain the Appeal as presented by the Appellant. They argued that the decision being challenged by the Appellant emanated from a quasi-judicialbody and can only be challenged by way of Judicial Review Application.

3. Mr. Boniface Njiru appeared for the Appellant/Applicant, while Miss Okimaru represented the Respondent. In their oral submissions Miss Okimaru contended that this matter emanates from the decision of the IEBC in exercise of its powers under Article 88 (4)(e)of the Constitutionas read withSection 74of theElection Act.Counsel asserted that both provisions of the law are silent on whether the decision of the IEBC under those provisions can be appealed.

4. She cited the case of Moses Wasike Wetangula v Musakari Nazi Kombo & others [2015] eKLR, in which the Supreme Court held inter alia that where a court is not granted specific powers it cannot proceed with that matter. She also cited John Ndirangu Kariuki vs Commission on Administration of Justice & Another [2014] eKLR, where the Court of Appeal quoted Samuel Kamau Macharia & Anor vs Kenya Commercial Bank & 2 Other [2012] eKLR, which stated that a court’s jurisdiction flows from the Constitution or the law and a court cannot arrogate jurisdiction to itself.

5. In M/s. Okimaru’s opinion the only avenue available to the Appellant is to come for review of that decision. To fortify her position she also cited the decisions of Kelvin Oselu Obondo vs The Orange Democratic Movement & 2 Others EPA No. 114 of 2017 by Muchelule J and FrancisChege Wachira vs Independent Electoral & Boundaries Commissionin Election Nomination Appeals No. 12 of 2017 by Lesiit J.

6. Mr. Njiru on the other hand asserted that it would be a grave matter for the High Court to abdicate its responsibility under the Constitution. He clarified that this is a matter in which the Applicant is saying that he was denied the right to be a candidate for the Senatorial seat in Trans Nzoia County. Counsel asserted that the High Court has jurisdiction under Article 22 to hear all matters regarding human rights. In his opinion therefore, the form in which the matter has been presented should not matter since it can be presented even by way of a letter.

7. Counsel submitted that the provisions of the law being silent on the right of appeal this court should determine whether or not to hear the matter, keeping in mind that it has unlimited jurisdiction including supervisory powers under Article 65of theConstitution. He asserted that at this point this court is sitting as a High Court to determine his client’s political right and not as an election court. The court should therefore proceed to determine the substantive complaint before it, without looking at the form in which the matter was presented.

8. The only issue for determination is whether this court has jurisdiction to entertain the appeal as presented by the Appellant and I have availed myself of the existing decisions on the issue. In the John Ndirangu case (supra) to which the Respondent referred this court the Supreme Court reiterated the Samuel Kamau case (supra) as follows:

“A court’s jurisdiction flows form 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 to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any petition that was before it. The issues could only be determined by an election court in a petition properly presented before such court.

9. I must reiterate the words of the Supreme Court at page 157 of Moses Masika Wetangula’s case as follows:

“157. It is now an indelible principle of law that the proceedings before an election court are sui generis. They are neither criminal, nor civil. The parameters of this jurisdiction are set in statute the Elections Act). As such, while determining an election matter, a court acts only within the terms of the statute, as guided by the Constitution.”

This approach is in keeping with stand taken by the Supreme Court of India in Jyoti Basu & Others v Debi Ghosi & Others 1982 AIR 983.

“An Election petition is not an action at Common Law, nor in Equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, the court is put in a strait jacket.”

10. Having considered the foregoing decisions I agree with Lesiit and Muchelule JJ that the only conclusion to be drawn from the silence of the Constitution and the Statute on matters of appeal from the IEBC is that such jurisdiction does not exist. The High Court therefore does not have jurisdiction in the aforesaid matter. Without jurisdiction I cannot entertain this appeal. In the premise this appeal is found to be incompetent and is hereby struck out with no orders as to costs.

DATED, SIGNEDandDELIVERED at NAIROBI this 23rd DAY OF June, 2017.

…………………………….

L. A. ACHODE

JUDGE

In the presence of ………………………………….…….for the Appellant/Applicant

In the presence of ……………………………………………..….for the Respondents