[2022] KEHC 10779 (KLR)

Chilango & another v Independent Electoral and Boundaries Commission & 3 others (Constitutional Petition E005 of 2022) [2022] KEHC 10779 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10779 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E005 of 2022

JM Mativo, J

June 17, 2022

Between

Carolyne Andzazi Chilango

1st Petitioner

Coast Legal Aids and Resource Foundation

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Speaker of the National Assembly

2nd Respondent

Council of Governors

3rd Respondent

Attornry General

4th Respondent

Judgment

1. The Petitioners’ case as I glean it from the Petition is that there exists a number of County Governors who have expressed intention to vie for the positions of members of Parliament. Their contestation is that Members of Parliament are constitutionally mandated to perform oversight role over County Governments. They contend that in the event a former or current governor is elected to Parliament, it will be tantamount to asking a party to inquire, investigate and sanitize his misdeeds while at the helm of the County Government. To them, this would be an avenue for covering their wrongs and a violation of national values and principles of governance. As a consequence, they pray for: -a.A declaration that the former and current governors are not eligible to vie for the position of member of Parliament as it negates Articles 10 and 73 and 95(4) and 96(3) of the Constitution.b.A conservatory order be issued restraining the 1st Respondent from clearing and allowing any County Chief Executive Officer (Governors) to contest for the Position of Member(s) of Parliament.c.Any such other and or further order the honourable court may deem fit, just and expedient to grant in the circumstances of this case.d.Costs of the Petition.

2. In its grounds of opposition dated May 31, 2022, the 1st defendant states:- that Article 88 of the Constitution mandates the IEBC to supervise referenda and elections to any elective body or office established by the Constitution and any other elections as prescribed by a act of Parliament; (b) Article 88(4) (d) and (f) mandates the 1st Respondent to regulate the nomination of candidates and conduct their registration for elections; (c) the IEBC can only reject the candidature of a candidate if there exists a law that bars the individual from vying; (d) there is no law barring former Governors from vying for the seat of a Member of Parliament; (e) fundamental rights can only be limited by law, including the Right to a candidature for public in elections; (f) the Petition as drawn does not disclose any reasonable and or justifiable reason to limit the right of former Governors to vie as Members of Parliament; that the Petition is based on assumptions which cannot qualify as justifiable and reasonable grounds to limit the rights provided under the Constitution; and (g) that the Petition is an abuse of court process.

3. In its grounds of opposition dated May 30, 2022, the 4th Respondent stated that the Petition lacks merit; that this court lacks jurisdiction; that the Petition offends Article 38 of the Constitution, and lastly, it’s a misapprehension of the functions of the Parliament.

4. The 5th Respondent filed a Response to the Petition dated June 2, 2022 stating that the application is scandalous, vexatious and an abuse of court process; that unless disqualified under Article 99(2) of the Constitution, a person is eligible for election as a Member of Parliament if the person registered as a voter satisfies educational, moral and ethical requirements prescribed by the Constitution or Act of Parliament and is nominated by a political party; that no person can be disqualified under Article 99(2) of the Constitution unless all possibility of appeal or review of the relevant sentence or decision has been exhausted; that the qualification and the disqualification for nomination as Member of Parliament are set out in section 24 of the Election Actand being a governor or former governor is not one of the reasons for disqualification.

5. The Petitioners’ counsel’s submissions were essentially a replication of the averments in the pleadings. Essentially, he argued that should persons who served as governors be elected as Members of Parliament, there would be a risk of conflict of interests because of the unique oversight role over county government they undertake. He submitted that such a scenario will amount to inviting governors to sanitize themselves which will be an affront to checks and balances. While acknowledging that no law bars former and current governors from vying, he argued that there is a danger of conflict of interest. He invoked Article 165 (3) of the Constitution and argued that this court has jurisdiction to determine this case and cited Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others.

6. Counsel for the IEBC argued that the Petitioner seeks to curtail the rights of former and current governors guaranteed under Article 38 of the Constitution. He submitted that fundamental rights can only be limited as provided under Article 24 of the Constitution. He argued that no law bars former and current governors from vying, and added that the qualifications for Members of Parliament are provided in Article 99 of the Constitution. He relied on Stephen Wachira Karani v Attorney General and 4 others. On the question of oversight and conflict of interests, he submitted that the argument is too speculative to curtail a fundamental right. He submitted that the law lays down sufficient safeguards to oversee expenditure at the counties such as the office of the Controller and Auditor General. He added that the Senate sits as a whole and not the individual senators.

7. Counsel for the 4th Respondent cited Article 84 (f) of the Constitution and section 4 of the Independent Electoral and Boundaries Commission Act and submitted that this court lacks jurisdiction because this is a matter that ought to have been raised before the IEBC. He relied on Republic v Independent Electoral and Boundaries Commission & another Ex-Parte Shem Odongo Ochuodh which held that section 74(1) of the Elections Act gives the IEBC responsibility inter alia, to settle disputes relating to or arising from nomination.

8. Additionally, counsel cited Article 38 of the Constitution which grants every person political rights which cannot be easily derogated. As for the alleged conflict of interest, he noted that the Petitioner admits there is no law barring the former governors from vying for the said seats and added that the Petitioners have said nothing about Articles 94 and 95 of the Constitution. He submitted that the National Assembly does not oversight the County Governments unlike the Senate. He submitted that at the Senate, the oversight is not done by individual senators but it is a collective responsibility. He submitted that the qualifications of Members of Parliament under the Constitution do not bar a sitting governor from vying unless barred by law.

9. Counsel for the Attorney General referred to the qualifications in Article 99 and submitted that it does not refer to specific group of people nor does the Article bar governors from vying, and, that the only specific bar is provided in Article 75(3) of the Constitution.

10. This Petition will stand or fall on three key issues. One is whether it is premised on speculation, conjecture, generalities, possibilities and assumptions. The Petition is directed against former and serving governors who are said to have expressed interest to contest in the forthcoming general elections. The specific persons are not stated. Their identities are not disclosed. The Petition does not name any person who has declared interest or intention to vie. The Petitioners were not patient enough to object to the clearance of the candidates by the IEBC and if unsuccessful escalate the matter to the High Court. The use of the words “if the former and current governors are elected” and “it is likely to cause conflict of interest” have severally deployed in the Petition and the submissions.

11. For starters, I underscore the undeniable fact that access to justice is a cornerstone principle of our democracy. Vital to that principle is our justice system and the ease with which those who have been aggrieved are able to seek relief from the courts. Prior to the advent of the 2010 Constitution, litigants often encountered insurmountable pleading standards characterizing the gate through which claimants had to pass to gain entry into the judicial system. The 2010 Constitution ushered in a new era of open access for Petitioners by casting aside complicated fact-pleading regimes in favor of simplified pleadings including informal documents. The idea was that decisions should be rooted in the merits.

12. Rule 10 (3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides: -(3) Subject to rules 9 and 10, the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom

13. The above rule does not open a blanket door for Petitioners to bring to court Petitions based on speculation, conjecture, moot or unripe issues. For an informal pleading to be accepted, it must disclose denial, violation, infringement or threat to a right or fundamental freedom. A pleading should not be prospective, hypothetical or speculative. As Kriegler J succinctly put it:“The essential flaw in the applicants' cases is one of timing or, as the Americans and, occasionally the Canadians call it, "ripeness"... Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although, as Professor Sharpe points out and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air. ...The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered.”

14. As Lord Bridge of Harwich put it, courts do not pronounce on abstract questions of law when there is no dispute to be resolved.”It is perfectly true that usually the court does not solve hypothetical problems and abstract questions and declaratory actions cannot be brought unless the rights in question in such action have actually been infringed or shown to be likely to be infringed. Claimants are required to show plausible entitlement to relief' by offering enough facts "to raise a right to relief above the speculative level. The 2010 Constitution did not open a flood gate for Petitions based on speculation and conjecture. A party citing violation of Articles of the Constitution or breach of rights must plead with specificity the articles of the constitution alleged to be violated and the facts supporting the alleged violation. A Petitioner’s obligation to provide the grounds of his entitlement to relief requires more than labels, conclusions, speculation or assumptions. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are probable (even if doubtful in fact).

15. As stated above the Petitioners seek to bar former and current county governors from contesting in the August 8, 2022 general elections. This argument is premised on an averment that “if the former and current governors are elected as Members of Parliament” there will be an affront to the Senates oversight role on county governments because the MPS will essentially be oversighting functions they themselves performed. The above averment is speculative and overbroad. Arguability of a Petition is basically a question of fact based on materials and not on speculative persuasion at the hearing. This Petition suffers from a lack of precision. It is imprecise, vague and speculative. It targets a group of people and dangerously assumes all are guilty. It wants the court to “declare” former and current governors’ guilty long before the culpable are identified through a credible process. Its tantamount to applying an arrest warrant and suspend it over a group of people who stand “arrested” before culpability is established. The Petition stands on assumptions, it is overbroad in its language, and imprecise.

16. Speculative and conjectural allegations are not considered reliable, and they are not allowed as evidence in court cases. While someone can make an educated guess about something and be correct, there is no way to verify that in the court. Courts rely only on factual evidence and not litigants’ guesses about what else occur or may have occurred. This is what I will describe ungrounded assumptions. Courts must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence. This Petition suffers from speculation and conjuncture. On this ground alone, I dismiss it.

17. The second hurdle in front of this Petition is the doctrine of ripeness which prevents a party from approaching a court prematurely at a time when he/she has not yet been subject to prejudice, or the real threat of prejudice, as a result of conduct alleged to be unlawful. Ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." The goal of ripeness is to prevent premature adjudication; if a dispute is insufficiently developed, any potential injury or stake is too speculative to warrant judicial action.

18. The U S Supreme Court fashioned a two-part test for assessing ripeness challenges in Abbott Laboratories v Gardner as follows:-“Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."

19. The Petitioners approached this court immediately after the IEBC issued a Gazette Notice detailing the electoral calendar prior to the August 8 General Elections targeting the former and current governors who had declared interest in the said elections. At this point the nomination process had not been done. The claim was premised on an assumption they will offer their candidature and that they would be cleared to contest. This being the case, it cannot be said there existed a justiciable controversy as at the time this Petition was filed. A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory.

20. Like justiciability doctrine, the ripeness doctrine defines the limits of court’s jurisdiction to adjudicate disputes. Ripeness concerns the timing of judicial intervention and prevents courts from entangling themselves in abstract disagreements by adjudicating disputes too early. Ripeness is a jurisdictional issue that may be raised at any time. Also, the question of ripeness can be considered on a courts own motion.

21. To determine whether a particular issue is ripe for judicial resolution, courts employ the tests in Abbott Laboratories v Gardner which requires courts to evaluate whether a dispute is ripe. These are- (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration until later time. A claim may be unripe if it is based upon future events that may not occur as predicted at all. If waiting to decide a case would put the court in a better position to resolve the dispute, such as when further factual development would help the court to adjudicate the case, the case may be unripe and therefore nonjusticiable. Ripeness challenges arise in a variety of contexts, including challenges to administrative agencies actions or policies or pre-enforcement challenges against criminal investigation or prosecution.

22. Thus, to determine whether the case is presently justiciable within the meaning of threat of violation of rights contemplated under Article 22, the court must assess whether from the facts presented a real and imminent breach of the rights or violation of the Constitution is disclosed and whether it would be prudent to decide the case at the present time. As stated above. From the material before me, I find there was no real and imminent threat of rights to warrant court intervention at the stage this suit was filed and after candidates presented their nominations to IEBC, no amendment was sought to name the particular individuals, and even if this had been done, the Petitioners will still have to surmount yet another dispositive hurdle, namely the doctrine of exhaustion of remedies discussed below. To conclude the issue at hand, it is manifest that this Petition was filed pre-maturely at appoint it was not ripe for adjudication. On this ground alone this Petition is a non-starter and it must fail. I dismiss it on this ground.

23. I turn to the third issue, namely, the doctrine of exhaustion of remedies. As stated above, the Petitioners were too impatient to wait for the process to take shape and to only approach the IEBC after it had cleared the candidates. At this point they would have been certain whom to object and also the law would have been perfectly on their side since it provides a mechanism for settling such disputes. In fact, during the pendency of this Petition, nothing prevented them from approaching the said forum and then approach the High Court if dissatisfied by the decision.

24. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, moves to court without pursuing available remedies before the agency itself. This doctrine has assumed esteemed juridical lineage in Kenya, a position upheld by the Court of Appeal inSpeaker of National Assembly v Karumethus: -“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."

25. The above decision was pronounced prior to the promulgation of the 2010 Constitution. However, many Post-2010 court decisions in Kenya have embraced the reasoning as sound, and have added justification and rationale for the doctrine under the 2010 Constitution. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Othersthe Court of Appeal provided the constitutional rationale and basis for the doctrine as follows: -“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

26. The High Courtin the Matter of the Mui Coal Basin Local Community explained the rationale in the following words: -“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice JB. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

27. Article 88 (4) (e) of the Constitution mandates the IEBC to settle electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. This mandate is replicated in section. This mandate is replicated in section 74 of the Elections Act which provides for settlement of certain disputes. It reads: -(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.

28. The Petitioners failed to wait until the candidates are cleared and then utilize the above mechanism and only approach the High court if aggrieved by the decision. Their impatience and disregard of the above provisions means that this suit offends the doctrine of exhaustion of remedies, a doctrine which enjoys recognition under Article 159 (2) (d) which requires courts to embrace alternative dispute resolution mechanisms. On this ground alone, this Petition collapses because this court is divested of jurisdiction by the doctrine of exhaustion of remedies.

29. Even if I were to address the Petition on merits, (which I need not to on account of the above decided three issues), the orders sought if granted are likely to impinge Article 38 rights of the targeted group of people who are not before me or named by name. Such a limitation cannot pass an Article 24 analysis test because a limitation of a fundamental right must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. There was no attempt to show that the limitation of the rights guaranteed under Article 38 if permitted will pass the tests in Article 24.

30. The Petition having failed to surmount the issues discussed above; it is my finding that this Petition fails. I dismiss it with no orders as to costs.Orders accordingly.

SIGNED, DATED, DELIVERED VIRTUALLY AT MOMBASA THIS 17TH DAY JUNE 2022JOHN M MATIVOJUDGE