[2018] KEHC 8012 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 31 OF 2018

IN THE MATTER OF: THE CONSTITUTION OF KENYA ARTICLES 10,22,27,33,36,38,47,56,177,193,232 AND 249

IN THE MATTER OF: SECTIONS 34, 35, 36 AND 37 OF THE MATTER OF THE ELECTIONS ACT (NO. 24 OF 2011)

IN THE MATTER OF: THE ELECTIONS (GENERAL) REGULATIONS, 2012

IN THE MATTER OF: THE ELECTIONS (PARTY PRIMARIES AND PARTY LISTS) REGULATIONS, 2017

IN THE MATTER OF: THE CIVIL PROCEDURE ACT CAP 21 OF THE LAWS OF KENYA.

IN THE MATTER OF: AN APPLICATION TO BRING JUDICIAL REVIEW PROCEEDINGS AGAINST THE CHIEF MAGISTRATE’S

COURT JUDGMENT DELIVERED ON 19TH JANUARY 2018 IN THE ELECTION PETITION NUMBER 23 OF 2017, BY WAY OF ORDERS OF CERTIORARI AND PROHIBITION

BETWEEN

CATHERINE MUTHONI MWAMRA...................................APPLICANT

VERSUS

HAMIDA YAROI SHEK NURI…….........................1ST RESPONDENT

THE INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION …………......................................2ND RESPONDENT

AMANI NATIONAL CONGRESS PARTY.............3RD RESPONDENT

FAITH TUMAINI KOMBE……….…….....……….4TH RESPONDENT

D.W. MBURU PRINCIPAL MAGISTRATE,CHIEF MAGISTRATE’S

COURT NAIROBI…………...........................….…5TH RESPONDENT

JUDICIAL SERVICE COMMISSION…….…...….6TH RESPONDENT

RULING

1. This ruling determines the exparte applicant’s chamber summons dated 26th January 2018 seeking leave of court to apply for Judicial Review orders of:

a. Certiorari to quash the decision of the Chief Magistrate’s Court at Nairobi dated 19th January 2018 ordering the gazettment of the 1st respondent Hamida Yaroi Shek Nuri as duly nominated member of the County Assembly of Tana River County being the woman nominee of the 3rd respondent in gender top up list;

b. Prohibition, preventing the 2nd respondent IEBC from publishing the 1st respondent through gazette notice as ordered in the decision subject matter herein.

c. That the leave if granted do operate as stay of the decision of the 5th respondent dated 19th January 2018

d. Costs of the application be provided for.

2. The application is predicated on the grounds on the face of the chamber summons and on the statutory statement and verifying affidavit sworn by Catherine Muthoni Mwamra the exparte applicant herein.

3. The exparte applicant claims that she applied to the Amani National Congress party to be nominated on the party list as per the Constitution and her name was amongst other names submitted by her party to the IEBC.

4. That thereafter the IEBC did a due diligence as required by law and identified areas where the party list had not complied with the law and returned the list to Amani National Congress party pointing out areas for correction after which the Amani National Congress resubmitted the list having complied with the law.

5. That upon the IEBC confirming that the party list had been corrected and published, it invited aggrieved parties to lodge their complaints either at the Political Parties Disputes Tribunal [PPDT] or to the IEBC’s Dispute Resolution Committee. [DRC].

6. That no complaints were filed at the Political Parties Dispute Tribunal or to the IEBC/DRC challenging the 3rd respondent (ANC’s ) party list with respect to Tana River County where the applicant’s name appeared second under the gender top up.

7. That after the 8th August 2017 general elections, Faith Tumaini Kombe was gazetted as a nominated member of the County Assembly, Tana River County, having been first on the party list referred to.

8. That however, in the decision delivered by the CM’s Court in the petition, the court arrogated itself the mandate allocated to the IEBC by the Constitution by bypassing the applicant who was the second person on the party list without according her a hearing which is unlawful and contrary to the dictates of natural justice, the Constitution and was therefore unreasonable, and founded on irrelevant considerations hence it is fair and just that the gazettment of the 1st respondent is stopped/stayed.

9. The 1st respondent Hamida Yaroi Shek Nurifiled a replying affidavit sworn on 7th February 2018 deposing in contention that the application is brought in bad faith, is an abuse of the court process and ought to be struck out in limine because the application is brought by the 4th respondent Faith Tumaini Kombe masquerading/passing off as the applicant herein for reasons that :

i. The applicant seeks to quash the election Petition trial court’s judgment to the benefit of the 4th respondent.

ii. The applicant seeks to prohibit the gazettement of the 1st respondent.

iii. The applicant seeks to stay the Chief Magistrate’s decision to the benefit of the 4th respondent.

iv. None of the Judicial Review orders sought or stay is beneficial to the applicant.

v. The applicant does not seek a mandamus order to be afforded an opportunity to be heard by the election petition court.

vi. That the orders of stay sought herein were declined by the trial court and Appeal No. 5/2018 Amani National Congress and another vs Hamida Yaroi Shek Nuri.

vii. That this application is an abuse of court process, a waste of the judicial time.

viii. That if the court issues orders in this case and in HC Election Petition No. 5/2018, then the orders will embarrass the court since the alleged failure to follow the laid down procedure for resolving the dispute and failure to accord the applicant an opportunity to be heard are all contained in grounds 2,4,5 and 6 of the 4th respondent’s Memorandum of Association filed on 24th January 2018.

ix. That there is no evidence to show that the applicant had applied for nomination as required by the party constitution. That the applicant does not disclose who notified her of the court’s decision yet the Election Petition before the CM’s Court was gazzetted vide Kenya Gazette Notice No. 9913 of 6th October 2017.

x. That if the applicant wanted to be heard in the election petition she should have sought to be enjoined in the said election petition. That the orders issued by the CM’s court were in order and well founded in law, based on congent evidence and that the applicant does not sand to suffer, any prejudice.

10. The 2nd respondent IEBC filed a replying affidavit sworn by Douglas Bargorett on 14th February 2018 deposing a neutral position while stating that it complied with the law regarding nominations and published a gazette notice in accordance with the law hence it awaits the Speaker of County Assembly of Tana River County to issue notice of vacancy gazettment of the 1st respondent as required under Section 19(3) of Elections Act 2011.

11. The 5th and 6th respondents CM’s court and Judicial Service Commission filed grounds of opposition dated 13th February 2018 and a notice of preliminary objection dated the same day contending that the procedure of Judicial Review is not available to parties aggrieved by the outcome of an election process.

12. That the only valid way of challenging such an electoral process is by way of an Election Petition as was held in Speaker of National Assembly vs James Njenga Karume[1992] e KLR; Kimani Wanyoike v The Electoral Commission & Another CA Nairobi 213/95 and Kones v Republic Exparte Kimani Wa Wanyoike [2006] 2 EA.

13. That therefore this court lacks jurisdiction to hear and determine this matter because the matter offends Section 74(1A) of the Elections Act which stipulates the manner in which County Assembly Petitions should be handled regarding validity of member of a County Assembly election.

14. Secondly, that this Judicial Review court has not been constituted as the election court in accordance with Rule 6 of Elections (Parliamentary and County Elections Petitions) Rules, 2017 and therefore the judge presiding over this matter has not been gazetted as required under Rule 6(2) of the Rules.

15. Finally that there being Petition Appeal No. 5/2018 Amani National Congress & Another vs Hamida Yaroi Shek Nuri & another which is an appeal from the decision of Honourable D.W. Mburu, the appeal covers substantially the same concerns being raised in the application herein hence this application is an abuse of the court process.

16. The parties’ advocates argued the application for leave and the preliminary objection orally on 15th February 2018 with Mr Mukele counsel for the 3rd and 4th respondents leading the submissions in favour of the exparte applicant.

17. According to Mr Mukele, reiterating the depositions on record by the exparte applicant, it was submitted that the applicant was neither a party nor was she heard in election petition No. 23/2017 hence the decision affecting her should be quashed.

18. Reliance was placed on Republic vs Chief Magistrate’s Court at Milimani exparte Violet Mutinda to argue that their clients are not interested in the appeal but in the process by which the decision of the Chief Magistrate was arrived at.

19. It was also submitted that Section 75(4) of the Elections Act is clear that an appeal from the decision of the Magistrate’s Court is only on questions of law and that the applicant will not be allowed to adduce any evidence as such, the matter falls within the Judicial Revenue purview jurisdiction.

20. It was submitted that it is a cardinal principle that no party should be condemned unheard. Further, that since the Chief Justice has not made Rules under the Fair Administrative Action Act, the Magistrate’s Court is subject to the Fair Administrative Action Act and that the Chief Magistrate’s Court arrogated itself powers of IEBC to order the gazettment of the person who was No. 3 on the party list without considering No. 2 who was most qualified.

21. It was submitted that where a person has not been heard, the decisions of a subordinate court must be interfered with.

22. On the contentions that this court has no jurisdiction to hear and determine a matter arising from an election petition, it was submitted that this court’s jurisdiction to supervise inferior courts and tribunals is donated by the Constitution and is therefore unfettered especially where a denial of a hearing is evident.

23. It was submitted that the existence of an election petition Appeal does not oust the jurisdiction of this court in Judicial Review

24. It was submitted that his court should be persuaded by the decisions in the Republic vs The Speaker of the National Assembly & 4 Others and the case of Migiro Chadwick Kerama Mathius vs Kenya School of Law[2017] e KLR and HCC JR 262/2013- Republic vs The Chief Magistrate’s Court Milimani & Others exparte Violet Ndanu Mutinda & Another [2014] e KLR and grant the orders sought.

25. It was further submitted that if the 1st respondent is gazetted, then only an election petition can be lodged hence stay should be granted.

26. Mr Ngome for the exparte applicant submitted that Section 4 of the Fair Administrative Action Act guarantees the right to a fair hearing and that since the applicant is not challenging any election, the preliminary objection under Section 75(4) of the Elections does not hold.

27. Further, that Section 165(6) of the Constitution gives this court power to grant judicial review orders and that all inferior courts are subject to Judicial Review of this court.

28. In response, Mr Mokua counsel for the 1st respondent submitted that the grant of leave is discretionary and not as of right. Further, that the applicant must demonstrate that she has a prima facie arguable case.

29. In this case it was submitted that the applicant’s case is not genuine because Judicial Review orders are being sought for the benefit of the 4th respondent not the applicant. It was submitted that the applicant will not benefit from prohibition or stay but the 4th respondent will, hence the application is a back door attempt to get stay orders in Election Petition No. 23/2017.

30. Accordingly, it was submitted that no leave should be granted on frivolous application. It was submitted that the issue of procedure for nominations is alive in HC Elections Petition Appeal No. 5/2018.

31. Further, that the question of the applicant not being heard is ground No. 4, 5 and 6 of the Appeal. It was submitted that if leave is granted, two High Courts shall be presiding over the same issue since the Election Petition Appeal is the alternative remedy hence the Judicial Review proceedings are not available to the applicant herein.

32. It was also submitted that election petitions are gazettted to invite interested or affected parties to apply to be enjoined hence failure by the applicant to be enjoined therein is a clear indication that she waived her right to be heard in the matter.

33. It was submitted that Article 165(6) of the Constitution only operates when the matter is before the subordinate court and that once a judgment is rendered, the High Court cannot interfere by way of Judicial Review. It was submitted that the allegations on consideration of the applicant for gazettment as she was No. 2 on the party list is also before the Appeal court.

34. On the issue of stay, it was submitted that it ought not to be granted as the applicant had not demonstrated that the main motion would if successful be rendered nugatory. Counsel urged the court to dismiss the application for leave and stay with costs.

35. Miss Mumbi counsel for the 2nd respondent on her part relying wholly on their replying affidavit sworn by Douglas Bargorett clarified that the applicant was a nominee No. 2 on the gender top up list of the Amani National Congress party (3rd respondent) and that the judgment delivered by the Chief Magistrate’s Court on 19th January 2018 ordered the IEBC to gazette the 1st respondent as nominee for gender to up. That as there is no stay, the IEBC was awaiting the Speaker of Tana River County to announce or declare a vacancy upon which they will gazette the person declared by the Chief Magistrate’s Court.

36. Mr Mokua on behalf of the 5th and 6th respondents argued, his preliminary point objecting to the application and reiterated what is contained therein while maintaining that the right to be heard is a constitutional right and a matter of law and that it is one of the issues that the Elections Appeals Court is expected to make a determination on.

37. Further, that the law is clear that only an election court can determine election petitions. Reliance was placed on Konesvs Republic and Exparte Wanyoike & Others where the court of Appeal made it clear that the only process by which a member of County Assembly can be removed from office is by way of an election petition.

38. Counsel submitted that to allow this matter is to pave way as to who will become a member of Tana River County Assembly yet only an election court can issue such orders. The court was urged to dismiss the applicant’s application with costs.

39. In a rejoinder Mr Mukele submitted that Rule 6 of the Elections Rules cannot override Article 165 of the Constitution which gives supervisory jurisdiction to this court and that the Elections Act has not taken away those powers from this court. It was submitted that this court can call for and quash proceedings/decisions of subordinate courts since the facts of the case are not disputed that the applicant was not a party to the proceedings in the Election Court.

40. On the contention that the Election Petition was gazetted, it was submitted that the purpose of gazettment is administrative because of timelines associated with election petitions, and not an announcement to invite interested parties to be enjoined thereto.

41. Mr Mukele emphasized that the right to be heard cannot be taken away and that IEBC had confirmed in their replying affidavit that Section 34(5) of the Election Act provides for nomination in the order of priority on the party list and that after issuance of gazette notice then only an election petition can invalidate the process.

42. As such, it was submitted that a stay was necessary to preserve the status quo.

43. On the contentions that there is a pending appeal, it was submitted that the applicant is not a party to the appeal hence these proceedings are necessary as she will not be allowed to adduce new evidence on appeal. It was submitted that if certiorari is issued, then the appeal can lapse.

DETERMINATION

44. I have carefully considered the applicant’s chamber summons for leave and stay, the respondent’s responses, the parties’ advocates oral submissions on the subject and the authorities cited and relied on.

45. In my view, the main issues for determination are

i. Whether this court has jurisdiction to hear and determine this matter.

ii. Whether the applicant is entitled to the orders for leave and stay sought.

iii. What orders should this court make?

iv. Who should bear costs of these proceedings?

46. On the first issue of whether this court has jurisdiction to hear and determine this matter, it is important to note that jurisdiction flows from either the Constitution or legislation or both. It follows that a court of law cannot arrogate itself of jurisdiction that it does not possess. Neither can the parties vest jurisdiction in a court or tribunal. Not even by consent of parties.

47. The locus classicus on jurisdiction of the court is the Owners of Motor Vessels “Lilian S” vs Caltex Oil (K) Ltd [1989] KLR 1653 (CA)where the Court of Appeal stated thus:

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

48. Emukule J ( as he then was) in John Kipngeno Koech & 2 Others vs Nakuru County Assembly & 5 Others (2013) e KLRstated thus on jurisdiction, and I concur:

“Jurisdiction is the practical authority granted to a formally constituted legal body to deal with and make pronouncements on legal matters and by implication to administer justice within a defined area of responsibility. It is the scope, validity, legitimacy, or authority to preside or adjudicate upon a matter.”

48. In the instant case, the 5th and 6th respondents contend that this court has no jurisdiction to hear and determine this matter because Section 75(1A) of the Election Act provides that with respect to County Election Petitions, a question as to the validity of the election of a County Assembly shall be heard and determined by the RM’s Court designated by the Chief Justice. Further, that Under Section 75(4) of the same Act, an Appeal under sub-Section (1A) shall be to the High Court on matters of law only and shall be filed within 30 days of the decision of the Magistrate’s Court and be heard and determined within six months from the date of filing of the Appeal.

50. Secondly, that this court being a Judicial Review court has not been constituted as an election court in accordance with Rule 6 of the Elections ( Parliamentary and County Assembly Elections Petitions) Rules 2017, and the judge presiding over the matter has not been gazetted as required by Rule 6(2) of the Rules.

51. On the part of the applicant and her proponents, this court has supervisory powers over the subordinate courts and can quash proceedings and decision of the RM’s Court where it is clear that the subordinate court violated the applicant’s right to be heard.

52. Further, that the provisions of Article 165(6) of the Constitution is superior to Section 75 of the Elections Act and any rules made there under .

53. In Samuel Kamau (SK) Macharia vs KCB Ltd & another [2012] e KLR the Supreme Court stated:

“ A court’s jurisdiction flows from either the Constitution, or legislation or both. Thus a court of law can only exercise jurisdiction as conferred on it by law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law- where the Constitution exhaustively provides for the jurisdiction of a court of law, it must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.

54. The jurisdiction of this court in Judicial Review matters is derived from the provisions of Articles 23, 47 and 165(6)(7) of the Constitution, sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, 2015.

55. Under Article 165(6) of the Constitution, the High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Under Article 165(7) for purposes of Clause(6), the High Court may call for the records of any proceedings before any subordinate court or person, body or authority referred to in Clause(6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Article 23 gives this court power to enforce the bill of rights.

56. It is therefore not in dispute that this court has jurisdiction in judicial review matters in exercise of its supervisory jurisdiction over subordinate courts and tribunals and in granting judicial review remedies for violation of rights including the right to be heard and to a fair administrative action as stipulated in Articles 23 and 47 of the Constitution and the Fair Administrative action Act.

57. However, it is not in doubt that the jurisdiction of this court is not unlimited and that even where the court has jurisdiction, where there is an alternative effective remedy, then this court’s jurisdiction would be limited to the extent that a party must first exhaust that other remedy before resorting to judicial review. This is the spirit and letter of Article 159(2)(c) of the Constitution and section 9 of the Fair Administrative Action Act, 2015.

58. In Samson Chembe Vuko V Nelson Kilumo & 2 Others [2016] e KLR, the Court of Appeal citing several other decisions with approval among them:

a. Speaker of the National Assembly vs Karume [2008] 1 KLR 425 where the Court of Appeal held inter alia:

“……..where there is a clear procedure for the redress of any particular grievances s prescribe by the Constitution or the Act of Parliament, that procedure should be strictly followed….”

b. In Mutanga Tea & Coffee Company Ltd Vs Shikara Limited & Another [2015] e KLR the Court of Appeal reiterated the foregoing as follows:

“…….This court has in the past emphasized the need for aggrieved parties to strictly follow any procedures that are specifically prescribed for resolution of particular disputes (Speaker of the National Assembly V Karume)(supra), was a 5(2) (b) applicant for stay of execution of an order of the High Court issued in Judicial Review proceedings rather than in a petition as required by the Constitution. In granting the order, the court made the often –quoted statement that:

“[W] here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. ( see also Kones v Republic & Another exparte Kimani Wa Nyoike & 4 Others [2008] e KLR (ER) 296)

“It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court. (Emphasis added).

The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.(Emphasis added).

Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner.…

…..We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts……”(emphasis added).

59. From the above decisions and others, it is clear that as recent as 27th day of May 2016 when the Court of Appeal rendered the decision on Samson Chembe Vuko V Nelson Kilumo (supra), parties ought not to invoke the jurisdiction of the High Court in Judicial Review matters where there is an alternative dispute resolution mechanism established by an Act of Parliament and which is efficacious .

60. Article 177 of the Constitution provides for the composition of the County Assembly and how its members are elected and or nominated. This is through-

a. Directly elected from the wards

b. Nominated based on special seats for gender top up;

c. Those from the marginalized groups;

d. The Speaker;

61. Those in the (b) and (c) category are nominated by political parties proportionate to the number of seats garnered in (a). Those to fill special seats are determined after the election results have been declared.

62. After the declaration of results, the IEBC conducts election for the party top up lists and gazettes the members as required under the Act and those nominated to the County Assembly.

63. Any person aggrieved by the nomination which is duly gazetted by IEBC can only challenge it through an Election Petition before a Resident Magistrate’s Court.

64. In Moses Mwicigi & 14 Others vs IEBC & 5 Others [2016] e KLR, the Supreme Court held, inter alia:

“ {106] The gazette notice in this case signifies the completion of the “election through nomination” and finalizes the process of constituting the Assembly in question.

[107] ] it is therefore clear that the publication of the gazette notice marks the end of the mandate of IEBC regarding the nomination of party representatives and shifts any consequential dispute to the Elections Courts. The gazette notice also serves to notify the public of those who have been “elected” to serve as nominated members of a County Assembly.”

65. In Rose Wairimu Kamau and 3 Others vs IEBC CA 169/2013 the Court of Appeal stated:

“…..in reaching the conclusion, we are alive to the fact that once nominees to Parliament and County Assemblies under Articles 97( 1C) and 177(2) respectively have been gazetted, they are deemed elected members of Parliament and the County Assemblies and any challenge to their membership has to be by way of election petitions under Article 105 of the Constitution or Part VIII of the Elections Act as the case may be.”

66. In this case, it is not in dispute that the applicant is listed as No. 2 on the gender top up party list for Amani National Congress Party in Tana River County Assembly. It is also not disputed that the 1st respondent Hamida Yaroi Shek Nuri was the petitioner in Election Petition No. 23/2017 challenging the declaration by IEBC that Faith Tumaini Kombe was the nominated member of County Assembly of Tana River County. The petitioner also sought a declaration that the nomination of the said Faith Tumaini Kombe as a member of Tana River County Assembly was invalid, null and void as she was not a registered voter among other allegations. The challenge was based on the party list for Amani National Congress for Tana River County which had nominees namely:

i. Faith Tumaini Kombe

ii. Catherine Muthoni Mwaura

iii. Nuri Hamida Yaroi Shek.

67. The Magistrate’s Elections Court upon hearing the parties observed that the petitioner had adduced evidence that the 4th respondent herein Faith Tumaini Kombe and the other nominee for the Amani National Congress namely Catherine Muthoni Mwamra who is the applicant were not registered voters, as shown by electronic print outs accompanied by certificates.

68. The Election Court also observed that the 2nd nominee on the Party List one Catherine Muthoni Mwaura did not even raise any issue after the IEBC failed to gazette her name.

69. That is the context in which the applicant herein, Catherine Muthoni Mwamra, who was not a party to the Election Petition, and who was not even gazetted by IEBC was mentioned by the Election Court. No specific orders were issued or made against her.

70. But assuming that the Elections Court made some specific orders against the exparte applicant herein, the main question would be whether this court would have jurisdiction to invoke its jurisdiction under Articles 165 (6) and (7) or 47 or 23 of the Constitution to protect the applicant’s right to be heard in an election petition which is already concluded and if the court were to do that, what would be the consequences of that election petition which is being challenged in the High Court Election Appeal Court?

71. This court does appreciate as was held in Onyango vs Attorney General [1986-1989] EA 456 that:

“I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.

Adecision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”

72. And in Mbaraki & Others vs Macharia & Another [2005] 2 EA 206 at 210 the court stated;

“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

73. As earlier stated, this court’s jurisdiction is not unlimited. The Constitution itself in Articles 162 and 165(5) limits this court’s jurisdiction and bars the court from hearing and determining disputes which are preserved for the Supreme Court and the Courts contemplated in Article 162(2). In addition, there are many statutes which limit jurisdiction of the High Court, including section 9 of the Fair Administrative Action Act, 2015.

74. Considering the question of jurisdiction of this court under Articles 47, 165(6) vis a vis section 75 of the Elections Act, I would agree that the jurisdiction of this court would be limited where the matter under challenge involves elections and where the effect of the order sought would be to nullify an election.

75. This is so because albeit Judicial Review is now a constitutional remedy elevated vide Articles 23 and 47 of the Constitution and therefore no longer a mere traditional prerogative writ, nonetheless, where such alleged violation relates to elections, the law is clear that parties affected must follow the procedure laid down in Election Statutes & Regulations. The Supreme Court has pronounced itself with clarity on this same issue in the Moses Mwicigi case (supra) that:

“[119] To allow an electoral dispute to be transmitted into a petition for the vindication of fundamental rights under Article 165(3) of the Constitution or through Judicial Review proceedings, in our respectful opinion, carries the risk of opening up a parallel electoral dispute resolution regime.

Such an event would serve not only to complicate, but ultimately, to defeat the sui generis character of electoral dispute resolution mechanisms, and notwithstanding the vital role of electoral dispute–settlement in the progressive governance set up of the current Constitution.

[120] in fortifying our pronouncement in paragraph 119, we revisit our earlier decision, Communications Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others [2014] e KLR Sup at Pet No 14/2014 as consolidated with Petition 14A of 2014, 14B/2014 and 14C of 2014 in which this court considered interpretative theory, in respect of Kenya’s Constitution, 2010. Had the interpretative approach we proposed in that decision been taken into account by the superior courts, and by the Magistrate’s courts, this may have provided a solution to the Court of Appeal’s task of interpretation. The proposed theory would have been of service to the Court of Appeal, by focusing that court’s attention upon the constitutional, statutory, and regulatory texts within the history of Kenya’s Constitution making, besides other non-legal phenomena…”

76. In the Mwicigi [supra] case, the 3rd respondent had filed a Judicial Review Application No. 218/2013 Republic vs IEBC & 17 Others exparte Lyelia Nyaguthi Githendu seeking an order of certiorari to quash the decision of the IEBC nomination tribunal made on 7th June 2013 on grounds that it does not conform to the provisions of Article 90 (2) (b) and 177(1) (b) and (c ) of the Constitution. On 12th July 2013 the High Court declined jurisdiction and dismissed the matters, on grounds that:

“ the issues raised were party matters that rest entirely with the political party and its members, and that no error had been disclosed to impugn the committee’s decision”

77. The Supreme Court clearly affirmed that :

“Only an Election Court has powers to disturb status quo in electoral matters. That any aggrieved party would have to initiate the process of ventilating grievances by way of an election petition, in accordance with Section 75 of the Elections Act and that proceedings in the nature of Constitutional Petitions or Judicial Review would have the effect of the court assuming jurisdiction which it did not have.

78. The Supreme Court at paragraph 111 of the same above Mwicigi case also noted that the order of certiorari issued by the Court of Appeal had the effect of annulling the appointment of the applicants as TNA nominated member of Nyandarua County Assembly.

79. In the instant case, in my humble view, and in line with the above Supreme Court decision, the orders of certiorari as sought vide the leave application herein if issued will have the effect of annulling the decision of the Election Court which annulled the nomination of the 3rd respondent and thereby reinstating her. That is the role and functions of an appellate court in an election appeal matter not of a Judicial Review court.

80. The Election Court is recognized as the judiciary’s forum of resolution of electoral disputes. “Election Court” is defined in Elections Act as:

“The Supreme Court in exercise of jurisdiction conferred by Article 163(5)(a)or the High Court in exercise of the jurisdiction conferred upon it by Article 163(3) of the Constitution and the Resident Magistrate’s Court as designated by the Chief Justice in accordance with Section 75 of the Act.”

81. I totally agree that to grant leave in this matter to apply is to assume jurisdiction to preside over an appeal against the decision of the Election Court (CM’s) Court which decision is already being challenged by the petitioner before the High Court election Court duly gazetted to hear and determine the appeal. This court is not an election court. It cannot hear and determine disputes arising from election court [subordinate court].

82. Furthermore, I see no reason why the petitioner in the Appeal did not seek for stay in the Election Appeal case and has instead put up a spirited fight in these proceedings through her counsel Mr Mukele who took up a dual role of arguing the application on behalf of his client and the exparte applicant for an order of stay.

83. This is in my view, is forum shopping by the petitioner, to find a soft landing site. This court would be interfering with jurisdiction of a court of competent jurisdiction if it allowed parallel proceedings to take place and in a way usurp powers of the Elections Appeals Court.

84. Therefore, as the issues to do with the right to be heard in proceedings are pure points of law being ventilated in the Elections Appeals Court and as this court’s jurisdiction is clearly ousted by section 75 of the Election Act as interpreted by the Supreme Court in the Mwicigi & Others [supra] case, I find and hold that to allow this matter to go on is to determine who becomes the County Assembly nominee for Amani National Congress Party for Tana River County Assembly, according to the party list, an issue which the Elections Appeal Court is competently seized of. Accordingly, I find and hold that this court is divested of jurisdiction to hear and determine this matter in its entirety.

85. Even assuming that this court had jurisdiction to hear and determine the matter, the respondents opposing the application for leave and stay are clear that the applicant’s application is an abuse of the court process and that it does not raise any prima facie arguable case for consideration at the substantive stage if leave is granted.

86. Indeed, the court at the leave stage is called upon to establish whether the applicant’s intended application raises any prima facie arguable case for indepth investigation at the substantive stage.

87. I have carefully considered the application and the responses. Other than the issue of jurisdiction of the court which I have already disposed off, I note that the context in which the applicant’s name featured in the judgment of Election Petition 23/2017 was not in a manner as to affect her rights or interests. She was mentioned in evidence by the Petitioners as one of the persons on the Amani National Congress party list who was not a registered voter. The Elections Court Magistrate also observed that the applicant had not even raised any issue for not being gazetted by IEBC.

88. There was nonetheless no determination made against the applicant in the judgment to warrant these proceedings claiming that the applicant was not accorded a hearing. There are many players in election petitions and it does not follow that every time one’s name pops up in the course of such proceedings then they must be dragged into the proceedings to be given an opportunity to be heard.

89. The 3rd respondent in that petition, from the judgment attached, is the one who raised serious issues against the Amani National Congress including providing a Party List of persons allegedly not registered as voters.

90. The applicant was not a party in those proceedings yes but there is no reason why she did not apply to be enjoined therein. She cannot feign ignorance of those proceedings which were published. It is not true that publication of petitions is a mere administrative act in line with set timelines. The publication informs all persons who may wish to be enjoined in the petition to join. The applicant herein sat on the fence and waited for her name to be mentioned in the proceedings then she popped up with these Judicial Review proceedings .

91. The applicant claims that she cannot as a non party to the appeal, adduce new evidence and that if this court issues certiorari then the appeal filed by the petitioner against the decision in the Election Petition 23/2017 will be spent. On that note alone, it becomes crystal clear to this court that the applicant who was not affected by the judgment of the CM’s court is seeking to appeal through these Judicial Review proceedings on behalf of the petitioner/appellant in the pending appeal. I say so for reasons that the Memorandum of Appeal filed on 24th January 2018 vide Election Appeal No. 5/2018 and dated 24th January 2018 by Amani National Congress & Faith Tumaini Kombe at grounds 4: That the learned trial magistrate erred in law by issuing adverse orders against the second nominee who was not a party to the proceedings 5. That the learned trial magistrate erred in law by condemning the second nominee without according her a fair hearing

92. Therefore, the question of whether or not the applicant herein was accorded a hearing prior to the decisions being made by the Election Court being subject of an appeal, it matters not, in my view, that she is not a party to that appeal, as she has not demonstrated how she has been affected or prejudiced by the judgment of the Election Court which as I have stated, never made any specific orders against her, other than making reference to her in line with the evidence adduced by the petitioner therein.

93. It is therefore not justifiable for the applicant to claim that she cannot adduce new evidence on appeal and that the appeal is only on a point of law. A complaint that a person who was not a party to the Election Court proceedings was nonetheless condemned by the court unheard is a pure point of law which can adequately be canvassed by the Election Appeals Court since that issue is already before that court, and therefore, separate Judicial Review proceedings cannot resolve the issue without setting side election court proceedings affecting election of a different person altogether.

94. These proceedings, in my humble view, seek to vary or set aside the judgment of the Elections Court which judgment has already been appealed against in accordance with the provisions of the Elections Act and Rules. This court is not an appellate court and cannot review election petition proceedings.

95. It is for that reason that Section 9(2) of the Fair Administrative Action Act 2015 stipulates that where there is an alternative remedy by way of appeal or internal review, this court is barred from hearing and determining Judicial Review proceedings. Indeed, to conduct parallel proceedings by the courts of concurrent jurisdiction would embarrass the court as similar issues are raised in both courts for determination.

96. The applicant has no prima facie arguable case for ventilation at the substantive stage. In the end, the notice of motion dated 26th January, 2018 be and is hereby dismissed.

97. I order that each party shall bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 2nd March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Ngome h/b for Mr Monda for the applicant

Mr Mokua for the 1st Respondent also h/b for Miss Mumbi for 2nd Respondent and Mr Kubai for 6th Respondents

Miss Daido for the 5th Respondent.

N/A for the 3rd Respondent

CA:Kombo