[2017] KEHC 9388 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 429 OF 2017

In the matter of Articles 2 (1), 3 (1), 232 and 258 (1) of the Constitution of Kenya 2010

and

In the matter of chapter 6 of the Constitution of Kenya on Leadership and Integrity and

In the matter of the Leadership and Intergrity Act Cap 182, Laws of Kenya

and

In the mater of the Independent Electoral and Boundaries Commission

and

In the matter of Administration of Justice, safeguarding the Rule of Law

BETWEEN

Brian Asin,

Ben Wanasakaami & Kevin O. Alwanga................................Petitioners

and

Wafula W. Chebukati...........................................................1stRespondent

Consolata Nkatha Bucha...................................................2ndRespondent

Roselyne K. Akombe...........................................................3rdRespondent

Prof. Abdi Ykub Guliye..........................................................4thRespondent

Margaret Wanjala Mwachanya..........................................5thRespondent

Paul K. Kurgat........................................................................6thRespondent

Boya Molu................................................................................7thRespondent

Ezra Chiloba...........................................................................8th Respondent

Independent Electoral & Boundaries Commission.......9thRespondent

The Honourable Attorney General....................................10thRespondent

JUDGEMENT

Introduction

1. By a Petition dated 18th August, 2017, filed at the Supreme Court of Kenya, the Hon. Raila Amolo Odinga and Hon. Stephen Kalonzo Musyoka successfully challenged the presidential results of the elections held on 8th August 2017 on grounds inter alia that the ninth Respondent so badly conducted the elections in that it failed to comply with the governing principles laid in the Constitution, the Elections Act[1] and the Regulations made there under including the Electoral code of conduct and that the non-compliance fatally compromised the conduct of the elections.

2. By a majority decision rendered on 1st September 2017 without reasons, the Supreme Court of Kenya, held that:- (a) the presidential election held on 8th August 2017 was not conducted in accordance with the constitution and the applicable law rendering the declared results invalid, null and void; (b) that the Hon. Uhuru Kenyata was not validly declared as the president elect and that the declaration is invalid, null and void; (c) an order be issued directing the I.E.B.C. to organize and conduct a fresh presidential election under article 140 (3) of the constitution within sixtydays from the date of the determination in strict conformity with the constitution and the applicable election laws.

3. Detailed judgment giving the reasons for the majority and minority determinations was rendered on 20thSeptember 2017.

Petitioners case

4. The same day the Supreme Court made determination without reasons, the petitioners filed this petition stating that the first to the eight Respondents were expected to exercise their constitutional and statutory powers conferred upon them with integrity by observing the principles forming the basis of ethical standards expected of holders of public office as set out in chapter 6 of the constitution, the Leadership and Integrity Act[2] and section four of the Fourth Schedule of the Independent Electoral and Boundaries Commission Act.[3]

5. The petitioners argue that "the Respondents' have been found guilty of misconduct by the Supreme Court," hence, "they have fallen short of the provisions of chapter 6of the constitution of Kenya and section 4, fourth schedule of the Independent Electoral and Boundaries Commission Act."[4]

6. The petitioners state that the Supreme Court ordered the I.E.B.C. to organize and conduct a fresh presidential election in strict conformity with the constitution and the applicable laws within 60 days from the date of the decision. It is the petitioners case that the Respondents having fallen short of their responsibilities cannot be expected to conduct free and fair elections as envisioned by the constitution. They cite section 4 of the Independent Electoral and Boundaries Commission Act[5] which expects the I.E.B.C. to perform their duties in a manner that maintains public confidence in the commission.

7. The petitioners also state that the Respondents, having bungled the impugned Presidential Elections and having been "indicted adversely," have lost the confidence of the public to conduct and supervise fresh elections hence they ask this court "to stop them from conducting the fresh elections as ordered by the Supreme Court."

8. The petitioners also state that public trust in public office holders is the central feature of the purpose of Leadership and Integrity under chapter six of the constitution and that public officers must maintain, respect and promote Rule of Law and cited the courts wide discretion to preserve and safeguard the Rule of Law and invited the court to make the declarations sought in the petition including barring the first to eight Respondents from supervising or overseeing the repeat elections.

First to Ninth Respondents Response

9. Wanyonyi W. Chebukati, the chairperson of the I.E.B.C. swore the affidavit dated 13th September 2017 on his behalf and the I.E.B.C. and on behalf of the second to eight Respondents. He states that he was appointed under the provision of article 250 of the constitution, in the manner specified under section 5 (2) of the Independent Electoral and Boundaries Commission Act[6] vide gazette notice number 399 of 18th January 2017 while the second to eighth commissioners were appointed under article 250 as read with section 5 (2) of the Independent Electoral and Boundaries Commission Act[7] vide gazette notice number 400 of 18th January 2017 and that the first to seventh Respondents term of office is six years and they can only be removed from office for the reasons and in accordance with the provisions of article 251 of the constitution.

10. He also averred that the eight Respondent is the commissions Chief Executive officer appointed by the commission pursuant to Article 250 (12) of the constitution as read with section 10 of the of the Independent Electoral and Boundaries Commission Act[8] and he can only be removed from office as spelt out under section 10 (8) and (9) of the Independent Electoral and Boundaries Commission Act[9] and questioned this court's jurisdiction to determine this matter in view of the said constitutional and statutory provisions.

11. He also correctly pointed out that as at the time of filing this petition, that is, on 1st September 2017, the Supreme Court had not rendered reasons for the determination (which were rendered on 20th September 2017) and that the Supreme Court gave specific directions to the commission to conduct fresh elections, hence this court is not and cannot be the forum to countermand the said orders which are binding to this court.

12. He also pointed out that the law contemplates the possibility of nullification of an election, hence, in such an eventuality, it cannot be the intention of the law that an illegality attaches automatically to the commissioners or the commission and its officers. In any event, Article 252 empowers the commission to hire, investigate and discipline its own staff either on its own initiative or upon receipt of a complaint and take appropriate action and that there was no evidence to support the alleged violation of chapter six of the constitution.

13. He also cited the existence of elaborate constitutional/statutory process stipulating the procedure and manner of removal of the commissioners, chairperson and chief executive officer which cannot be bypassed and that the Supreme Court was not sitting as a criminal court.

Tenth Respondents Grounds of opposition

14. The Hon. Attorney General filed grounds of opposition stating inter alia:-(a) that the Supreme Court did not bar the first to eight Respondents from conducting the elections; (b) that under section 87 of the Elections Act[10] even where the court determines that a electoral malpractice had occurred, the court transmits the order to the Director of Public Prosecutions for further action; (c) that section 41(2) of the Leadership and Integrity Act[11] provides that in the event of a breach of the code where the constitution or the law provides for procedure of removal or dismissal, the question of removal or dismissal shall be determined in accordance with the constitution or that other law.

Interested Party's Replying affidavit

15. On behalf of the interested party is the Replying Affidavit of Martykaren Kigen-Sorbit dated 1stSeptember 2017 which responds to the Notice of Motion filed together with the petition.

Petitioners Advocates submissions

16. The crux of the petitioners counsels submissions is:- (a)that the Supreme Court indicted the first to Eight Respondents in its judgment; (b) that the issue of their culpability was determined by the Apex court, hence its final; (c) that this Court has jurisdiction under Article 165 (3) of the constitution; (d) that article 251 of the constitution does not oust the jurisdiction of this court, and the use of the word "may" in article 251 connotes that the said provision is not mandatory; (e) that the petition was not filed pre-maturely, and that the first to eight Respondents failed the Leadership and Integrity test.

First to Ninth Respondents' Advocates' submissions

17. Counsels for the first to ninth Respondents' submitted that:- (i) this courts lacks jurisdiction to entertain this case and cited the procedure set out under article 251 (1) of the constitution, (ii) that the supreme court did not impute any criminal intent or culpability on part of the first to the second respondents, (iii) that the reliefs sought cannot be granted and urged the court to consider the effects of granting the reliefs sought which may amount to applying a construction of the constitution that may lead to absurdity and or jeopardizing the possibility of holding the fresh elections within the sixty days as directed by the Supreme Court.

18. Counsels also reiterated the independence of the ninth Respondent and other independent constitutional commissions as guaranteed under the constitution which is aimed at safeguarding against undue interference with such commissions or offices by other persons or other institutions of government and that they must operate without improper influences, fear or favour.[12]

Tenth Respondents Advocates' submissions

19. Counsel for the tenth Respondent submitted that the declarations sought are contrary to the constitution, the law and the Supreme Court decision and reiterated that where the law provides for procedures to be followed, the court ought to cede its jurisdiction.

Interested Party's Advocates' submissions

20. Counsels for the interested party cited article 251 (2) of the constitution and argued that:- (i) this court lacks jurisdiction;[13](ii)that the court cannot usurp jurisdiction given to other constitutional bodies where they fail to act in accordance with their mandate; (iii) that the jurisdiction under article 165 (3)(d) does not extent to performing the very roles set apart for constitutional bodies;[14] (iv) that the law grants exclusive jurisdiction to a tribunal under article 251 (5) to determine questions of removal of the first to eight Respondents; (v) where there is a clear procedure for redress of any particular grievance prescribed by the constitution or a act of parliament, that procedure should be strictly be followed;[15](vi) that the Respondents had not been found guilty by the Supreme Court and that the petitioners are not entitled to the reliefs sought.

Issues for determination

21. I find that the following issues distil themselves for determination, namely; (a) whether this court should decline jurisdiction in this matter; (b) whether the Supreme Court indicted the first to Eight Respondents ; (c) whether the petitioners are entitled to the reliefs sought; (d)What is the appropriate order regarding costs in this case.

On the issue of Jurisdiction

22. A Court’s jurisdiction flows from either the Constitution or legislation or both. The Supreme Court,[16]discussed the issue of jurisdiction in the following manner;"Assumption of jurisdiction by courts in Kenya is a subject regulated by the constitution; by statute law, and by principles laid out in judicial precedent." Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written laws.[17]

23. In the words of Chief Justice Marshall of the U.S.A, in Cohens vs. Virginia:-[18]

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

24. Article 251 of the constitution provides that:-

(1) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for--

(a) serious violation of this Constitution or any other law, including a contravention of Chapter Six;

(b) gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise;

(c) physical or mental incapacity to perform the functions of office;

(d) incompetence; or

(e) bankruptcy.

(2) A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.

(3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President.

(4) On receiving a petition under clause (3), the President--

(a) may suspend the member or office holder pending the outcome of the complaint; and

(b) shall appoint a tribunal in accordance with clause (5).

(5) The tribunal shall consist of--

(a) a person who holds or has held office as a judge of a superior court, who shall be the chairperson;

(b) at least two persons who are qualified to be appointed as High Court judges; and

(c) one other member who is qualified to assess the facts in respect of the particular ground for removal.

(6) The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days. (7) A person suspended under this Article is entitled to continue to receive one-half of the remuneration and benefits of the office while suspended.

25. Section 7A of the Independent Electoral and Boundaries Commission Act[19] provides that the office of the chairperson or a member of the commission shall become vacant if the holder dies, resigns from office by a notice addressed to the President or is removed from office under any of the circumstances specified in Article 251 and Chapter six of the constitution.

26. Regarding the eight Respondent, section 10 (8) of the Independent Electoral and Boundaries Commission Act[20] provides that the secretary may only be removed from office by the Commission on grounds of- (a) inability to perform functions of the office arising out of physical or mental incapacity; (b) gross misconduct; (c) bankruptcy; (d) incompetence.

27. Subsection (9) provides that before removal under subsection (8), the secretary shall- (a) be informed in writing of the reasons for the intended removal; (b) given an opportunity to put in a defence against any such allegations, either in person or through an advocate.

28. I am conscious of the fact that the right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable. This is the test the court should bear in mind when invited to decline jurisdiction.

29. Talking about powerful considerations, the above constitutional and statutory provisions require no elaboration.Where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, parties should to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court.[21]

30. Part four of the Leadership and Integrity Act[22] provides for enforcement of the leadership and integrity code and specifically provides for lodging of complaints and possible referral of criminal proceedings.

31. Clearly, there are elaborate constitutional and statutory provisions that the law has put in place to enforce breach of the leadership and integrity code. To me, this is a powerful consideration to guide the court before invoking its wide powers under Article 165 of the constitution. In my view, on the face of the above clear provisions, the invitation to this court to invoke its immense jurisdiction under article 165 (3) of the constitution is not appropriate.

32. It is my view that the existence of constitutional and statutory provisions purpose-built framework for investigating allegations against the commissioners infers that such processes and forums should take precedence.

33. In spite of the plethora of judicial pronouncements on the subject, the Constitutional and Human Rights Division continues to be frequently visited with matters where there are clearly laid down constitutionally and statutory mechanisms of resolving the disputes at hand and where there are institutions statutorily even constitutionally established and specifically charged with the responsibility to deal with the grievances.

34. Article 251 of the constitution provides a clear procedure for removal of the chairperson and members. The draftsman of the constitution was fully aware of the provisions of article 165 (3) when they enacted article 251 with such clear elaborate procedures.

35. The petitioners cannot seek to invoke article 165 (3) and ask the court to ignore article 251. That is a selective way of reading provisions of the constitution. It is a cardinal rule in constitutional interpretation that provisions of a constitution concerned with the same subject should, as much as possible, be construed as complementing, and not contradicting one another. The constitution must be read as an integrated and cohesive whole.[23]

36. It is an elementary rule of constitutional construction that no one provision of the constitution is to be segregated from the others and to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.[24]

37. The rational for the Security of Tenure guaranteed under article 251 is :- (a)that the Chairperson or Commissioners can only be removed from office on the grounds enumerated in article 251; and more important (b) that the grounds be subjected to independent review and determination by a process at which the chairperson or commissioner affected is afforded a full opportunity to be heard.

38. The essence of the Security of tenure under article 251of the constitution is a tenure, whether until an age of retirement or for a fixed term, or for a specific task, that is secure against interference by any person in a discretionary or arbitrary manner. This is a constitutionally guaranteed protection, hence the procedure and mechanism specified therein must be observed.

39. It is plain to me that the Constitution and the act envisage the entire process of removal of the chairperson and commissioners to be on the grounds stated in the constitution and in the manner stipulated under article 251 of the constitution. That is the essence of the constitutionally guaranteed security of tenure and it ought not be by-passed by filing a court process as has happened in this case. On this ground alone I decline to assume jurisdiction and entertain this matter.

Whether the Supreme Court indicted the first to Eight Respondents

40. The petitioners case is that the Supreme Court indicted the first to the eight Respondents, that they were found guilty of violating the provisions of chapter six of the constitution, and that the Supreme court is the final court in this country, and its decisions are binding on this court, hence, this court should on the basis of the said finding grant the reliefs sought.

41. As stated earlier, this petition was filed the same day the Supreme court rendered its determination without reasons. The petitioners admit this fact. The Supreme Court rendered its reasons on 20th September 2017. The question that follows is, "on what basis do the petitioners claim that the Supreme Court indicted the commissioners.?"

42. In view of the centrality of this question to the issue under determination, I find it appropriate to reproduce verbatim the relevant text in the Supreme Court majority decision at paragraph 386 which reads:-

"Regarding prayer (1), we have shown that IEBC did not conduct the 8th August 2017 presidential election in conformity with the constitution and electoral law. Irregularities and illegalities were also committed in a manner inconsistent with the requirement that the electoral system ought to be inter alia simple, verifiable, efficient, accurate and accountable. Although the petitioners claimed that various electoral offences were committed by the officials of the 1st respondent (IEBC) no evidence was placed before us to prove this allegation. What we saw in evidence, was a systematic institutional problem and we were unable to find specific finger prints of individuals who may have played a role in commission of illegalities. We are therefore unable to impute any criminal intent or culpability on either the 1st and 2nd Respondent or any other commissioner or member of the 1st respondent. We are similarly unable to find any evidence of misconduct on the part of the 3rd respondent. The prayer is therefore disallowed."

43. The above passage warrants no elaboration. Clearly, the Supreme Court did not indict the first to Eight Respondents as alleged nor did it find either of them criminally culpable. It follows that the petitioners allegations that the Supreme court indicted the first to eighth Respondents in its judgment have no basis. Besides, the petition was filed twenty days before the Supreme court rendered its reasons. This petition is premised on totally incorrect factual basis. On this ground alone, this petition is bound to fail.

44. As correctly pointed out by counsel for the Honorable Attorney General, section 87 of the Elections Act expressly provides that an election court may, at the conclusion of the hearing of a petition, in addition to any other orders, make a determination on whether an electoral malpractice of a criminal nature may have occurred, and where such a determination is made, the court shall transmit the order to the Director of Public Prosecutions who upon receipt of the order is required to direct investigations and based on the outcome of the investigations, commence prosecutions or close the matter. The supreme Court did not make such an order in this matter.

Whether or not the petitioners are entitled to the reliefs sought.

45. In view of my determination of the above issues and finding that the petition is unmerited, I find that the there is no legal basis for the court to grant the reliefs sought.

On the issue of costs

49. The first to Eight Respondents were represented by four advocates. The Hon. Attorney General was represented by one counsel while two advocates appeared for the interested party. Counsels for the first to ninth Respondents and the interested party urged the court to consider the number of advocates representing the parties and award costs accordingly.

47. Its trite law that the court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice,[25] having regard to all the relevant circumstances.[26]

48. The rationale for refusing to award costs against unsuccessful litigants in constitutional litigation was appreciated by the South African constitutional court which observed that "an award of costs may have a chilling effect on the litigants who might wish to vindicate their constitutional rights."[27] The court was quick to add that this is not an inflexible rule[28] and that in accordance with its wide remedial powers, the Court has repeatedly deviated from the conventional principle that costs follow the result.[29]

49. The rationale for the deviation was articulated by the South African constitutional Court in Affordable Medicines Trust vs Minister of Health where Ngcobo J remarked:-

“There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts and circumstances of the case."[30]

50. Sachs J, set out three reasons for the departure from the traditional principle:-

“In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the costs involved can be high. Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences. Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse.

Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations. Indeed, each constitutional case that is heard enriches the general body of constitutional jurisprudence and adds texture to what it means to be living in a constitutional democracy.

Thirdly, it is the state that bears primary responsibility for ensuring that both the law and state conduct are consistent with the Constitution. If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of state conduct, it is appropriate that the state should bear the costs if the challenge is good, but if it is not, then the losing non-state litigant should be shielded from the costs consequences of failure. In this way responsibility for ensuring that the law and state conduct is constitutional is placed at the correct door.”[31]

51. In addition to the above reasons, it is important to point out that costs are awarded at the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise.[32] Discussing the same point, the supreme court of Kenya in the case of Jasbir Singh Rai & Others vs Tarlochan Rai & Others[33] observed that:-

“in the classic common law style, the courts have to proceed on a case by case basis, to identify “good reasons” for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…….”

52. The reason for the above reasoning is that in public litigation, a litigant is usually advancing public interest as opposed to personal gain.

53. The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice.[34]The “nature of the issues” rather than the “characterization of the parties” is the starting point.[35]Costs should not be determined on whether the parties are financially well-endowed or indigent.[36]

54. The court in its discretion may say expressly that it makes no order as to costs and in that case each party must pay his own costs. But the court must not apply this or any other general rule in such a way as to exclude the exercise of the discretion entrusted to it and the material must exist upon which the discretion can be exercised. The discretion, like any other must be exercised judicially and the court ought not to exercise it against the successful party except for some reason connected with the case. It is not judicial exercise of the judge’s discretion to order a party who was completely successful and against whom no misconduct is even alleged to pay costs.[37]

55. It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is a matter in which the trial Judge is given discretion. ……But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.[38]

56. It is correct that there are exceptions to the general rule that in constitutional litigation an unsuccessful litigant in proceedings against the state ought not to be mulcted with costs as they may have a chilling effect on them. One of the exceptions, that justify a departure from the general rule, is where the litigation is frivolous or vexatious.[39]

57. Even though the petitioners did not state that they bring this petition for public interest, one of their grounds cites public trust in public office holders, and the issue at hand is admittedly a matter of public interest.

58. According to Black's Law Dictionary[40] "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

59. While dealing with the question of “bona fides”of a petitioner, especially in the case of a person approaching the Court in the name of Public Interest Litigation, the Indian Supreme Court in the case of Ashok Kumar Pandey vs. State of West Bengal[41]held as hereunder: -

“Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.”

60. The Public Interest Litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice.[42] But the profound need of this tool has been plagued with misuses by persons who file Public Interest Litigations just for the publicity and those with vested political interests. [43]The courts therefore, need to keep a check on the cases being filed and ensure the bona fide interest of the petitioners and the nature of the cause of action, in order to avoid unnecessary litigations. Vexatious and mischievous litigation must be identified and struck down so that the objectives of Public Interest Litigation aren’t violated. The constitution envisages the judiciary as “a bastion of rights and justice.

61. Public interest litigation is a highly effective weapon in the armory of law for reaching social justice to the common man. It is a unique phenomenon in the Constitutional Jurisprudence that has no parallel in the world and has acquired a big significance in the modern legal concerns.

62. Former Chief Justice of India A.S. Anand cautioned the over use of Public Interest Litigation and emphasized “Care has to be taken to see that Public Interest Litigation essentially remains public interest litigation and is not allowed to degenerate into becoming political interest litigation or private inquisitiveness litigation.[44]

63. The question is whether the proceedings before me are frivolous or vexatious bearing in mind that it is the duty of the court to see whether the petitioner who approaches the court has a bona fide intention and not a motive for personal gain, private profit or political or other oblique considerations.

64. Save for the fact that the petitioners' were overzealous and moved to court prematurely before the Supreme Court rendered its reasons, and even though the petitioners misconstrued or ignored the provisions of article 251 of the constitution, I find no evidence of bad motive on their part in exercising their right to access the court which is constitutionally guaranteed.

65. Absence of merits in this petition is not a ground to penalize them to pay costs. I find no reason to depart from the generally accepted jurisprudence discussed above and award costs against unsuccessful litigants in a constitutional petition just to penalize them as requested by counsels for the Respondents.

66. The upshot is that this petition is hereby dismissed with no orders as to costs.

Orders accordingly.

Dated at Nairobi this9thday ofOctober2017

John M. Mativo

Judge

[1]Act No. 24 of 2011

[2] Act No. 19 of 2012

[3] Act No. 9 of 2012

[4] Ibid

[5] Ibid

[6] Ibid

[7] Ibid

[8] Ibid

[9] Ibid

[10]Act No. 24 of 2011

[11]Act No. 19 of 2012

[12]Counsel cited the Supreme Court decision in constitutional Application No. 2 of 2011, In the matter of the Interim Independent Electoral Commission {2011}eKLR

[13] Counsel cited S. K. Macharia & Another vs KCB Ltd & 2 Others {2012}eKLR & Owners of Motor Vehicle "Lillian S" vs Caltex Oil (Kenya) lTD {1989}klr1

[14] Counsel cited Isaac Aluoch Polo Aluchier vs Ahmed Issack Hassan & 14 Others {2016}eKLR

[15]The Speaker of National Assembly vs Karume {2008}2KLR (EP) 423

[16]In the matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 (unreported)

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

[18] 19 U.S. 264 (1821)

[19]Supra

[20] Ibid

[21] See Kones vs. Republic & Another Ex parte Kimani Wa Nyoike & 4 Others {2008} 3 KLR (ER) 296).

[22] Act No. 19 of 2012

[23] Paul Ssemogerere and Others vs. The Attorney General, Constitutional Appeal no. 1 of 2002) [2004] UGSC10)

[24] Smith Dakota vs. North Carolina, 192 US 268(1940)

[25]Halsbury’s Laws of England, 4th Edition ( Re-issue), {2010}, Vol.10. para 16

[26] Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529

(CC) at para 138 (Affordable Medicines).

[27] Hotz and Others vs University of Cape Town [2017] ZACC 10, citing Biowatch Trust v Registrar, Genetic Resources [2012] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) at para 22 (Biowatch).

[28] Ibid

[29] See, for example, AB vs Minister of Social Development [2016] ZACC 43; 2017 (3) BCLR 267 (CC) at para

329; Minister of Home Affairs vs Rahim [2016] ZACC 3; 2016 (3) SA 218 (CC); 2016 (6) BCLR 780 (CC) at para 35;

Sali vs National Commissioner of the South African Police Service [2014] ZACC 19; 2014 (9) BCLR 997 (CC); (2014) 35 ILJ 2727 (CC) at para 97.

[30] {2005} ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) at para 138

[31]Biowatch Trust v Registrar, Genetic Resources [2012] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC) at para 22 (Biowatch)

[32] Mr. Justice (Retired) Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, ( Nairobi) Law Africa) 2011, page 94

[33] Supra note 4

[34] Supra note 32

[35] Ibid

[36] Ibid

[37] Re Ebuneiri Waisswa Kafuko, Kampala HCMA No. 81 of 1993 cited by Odunga J in Pet No 466 of 2014 cited above, see note 11

[38] Party of Independent Candidate of Kenya vs Mutula Kilonzo & 2 others, HC EP No. 6 of 2013

[39] Supra Note 32

[40] Sixth Edition

[41]AIR 2004 SC 280

[42]Public Interest Litigation: Use and Abuse, http://lawquestinternational.com/public-interest-litigation-use-and-abuse-0

[43] Ibid

[44]Abuse of Public Interest Litigation - A Major Threat on Judicial Process, http://www.legalserviceindia.com/article/l469-Public-Interest-Litigation.html rice India -use of Public Inerest Litigation - A Major Threat on Judicial Procrvice India - Abuse of Public Interest Litigation - A Major Thrat Judicial Process