[2017] KEHC 1792 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

ELECTION PETITION NO. 8 OF 2017

IN THE MATTER OF THE CONSTITUTION OF KENYA 2010 ARTICLE S 177, 88 (5), 90, 193, 2, 3, 10, 19, 20, 21. 22. 23, 25, 27, 47, 50, 159, 165, 259 AND 260

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT 2015

AND

IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT (NUMBER 9 OF 2011)

AND

IN THE MATTER OF SECTION 25 ELECTIONS ACT (NO. 24 OF 2011)

AND

IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATIONS (L. N. 128 OF 2012 AND L. N. 72 OF 2012)

AND

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

AND

IN THE MNATTER OF GAZZETTE NOTICE NO. 8380, VOL.CXIXX-NO, 124 OF 28th AUGUST 2017

AND

IN THE MATTER OF SECTION 7 OF THE COUNTY GOVERNMENT ACT NO. 17 OF 2012

AND

IN THE MATTER BETWEEN

CLAUDIA CHEBET KOSGEI ….....................................................................1st PETITIONER

CHRISTINE NAFULA NABISWA …..............................................................2nd PETITIONER

JONATHAN KIPKORIR KETER …..................................................................3rd PETITIONER

VERSUS

JUBILEE PARTY ….........................................................................................1st RESPONDENT

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION.............................................................. 2nd RESPONDENT

THE CLERK COUNTY ASSEMBLY OF

TRANS-NZOIA COUNTY ….............................................................................3rd RESPONDENT

PHYLIS NJERI MBUGUA …...................................................................1st INTERESTED PARTY

ANN WANJIKU MWANGI …...................................................................2nd INTERESTED PARTY

JOSEPH TRIKOI KAPCHANGA …..........................................................3rd INTERESTED PARTY

EVERKYNE CHESARI KAPKARICH …...................................................4th INTERESTED PARTY

JUDITH MUTONYI WAKWABUBI ….......................................................5th INTERESTED PARTY

JANE GAITANO …...................................................................................6th INTERESTED PARTY

MARGARET KAPSULEL MUTAI …........................................................7TH INTERESTED PARTY

RULING ON JURISDICTION:

1. This is a ruling on two preliminary objections on the jurisdiction of this Court over this petition. One of the objections was taken by the second Respondent herein, the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the IEBC’) and was tailored as follows: -

1. The petitioners filed this Petition on 14th September, 2017 in which hey seek the following orders:-

(a)A declaration that the nomination and gazzettement of the 1st , 2nd , 3rd , 4th , 5th, 6th and 7th Interested Parties by the 1st and 2nd Respondents is in violation of Articles 193, 177, 54, 27, the Elections Act 2011, the regulations thereof and therefore null and void.

(b)A declaratory order be issued to declare that the gazettement of Interested Parties was discriminatory against other applicants in the party lists and therefore unconstitutional.

(c)A declaratory order be issue requiring the 2nd Respondent to cause to be degazetted the Interested Parties accordingly.

(d)A declaratory order be issued requiring the 2nd Respondent yo gazette qualified and eligible persons from the list submitted by the 1st Respondent as members of the Trans Nzoia County Assembly.

(e)That the Respondents be ordered to bear the costs of this petition in any event.

2. The Petitioner's Petition is premised on the grounds that the 1st , 2nd and 3rd Interested parties are not registered voters within Trans Nzoia County and therefore they could not qualify to be nominated as Members of County Assembly of Trans Nzoia. They also contended that the 4th Interested Party was nominated under the category of minority / marginalized group and described as a Luhya though she is a Sabaot and the two communities are not minorities in Trans Nzoia County hence the 1st and 2nd Respondents violated the Constitution, Elections Act and Regulations thereof.

3. The 2nd Respondent oppose this Petition and has filed a notice of preliminary objection dated 18th September 2017 seeking that the petition be struck out on interlia the following grounds:-

(a)This Honourable Court lacks jurisdiction to hear and determine this petition in view of the provisions of Article 88 (4) (e) of the Constitution, section 74 (1) of the Elections Act, 2011 and section 39 of the Political Parties Act.

(b)The Petitioner's petition is time-barred in view of the provisions of Article 87 (2) of the Constitution and Sections 74, 75 and 76 of the Elections Act, 2011

(c)The Petitioner's petition is incompetent and legally untenable in view of the provisions of the provisions of Article 88 (4) (e) Section 74 (1) of the Elections Act and Regulation 99 (2) of the Election (General) Regulations, 2012 which vests the 1st Respondent with power to settle nomination disputes.

4. Having analyzed the Notice of Preliminary Objection to this petition, the following issues fall for determination:-

(a) Does this court have jurisdiction to hear and determine this petition?

(b) Is the Petition time-barred

2. The other objection was taken by the third Respondent herein, the Clerk County Assembly of Trans Nzoia County, and was couched in the following manner: -

(i) The Honourable Court has no jurisdiction to entertain the said application as well as the substantive petition thereof.

(ii) The 3rd Respondent has not breached any provision of law; constitutional or otherwise, as to warrant issuance of the orders sought against it.

(iii) The application is otherwise an abuse of the process of the court.

(iv) The application has been overtaken by events

3. The brief background of the petition is that all the Petitioners are duly registered members of the Jubilee Party which party is sued as the first Respondent herein (hereinafter referred to as ‘the Jubilee Party’) and were issued with Membership Card Nos. AB17523281, 106780 and AB 17475713 respectively. That the Petitioners variously applied to the Jubilee Party for nomination as Members of the County Assembly of Trans Nzoia whereof the first and second Respondents’ names were shortlisted by the Jubilee Party and forwarded to IEBC for nomination. That IEBC approved the names of the first and second Respondents and placed them, among many others, in the Daily Nation newspapers of the 23rd and 30th July 2017 respectively as the successful nominees awaiting for the gazettement after the declaration of the results following the then expected general elections which were to be held on 08/08/2017. That to the first and second Respondents’ utter shock and surprise their names did not appear in the Gazette Notice No. 8380 of 28/08/2017 (hereinafter referred to as ‘the impugned notice’) that was published by IEBC and instead the names of some of the interested parties appeared in the impugned notice instead. In a cry for justice the first and second Respondents filed this petition.

4. The third Petitioner’s case was however different. Whereas he applied to the Jubilee Party for nomination as a Member of the County Assembly of Trans Nzoia representing persons with disability, being visually impaired, he was not successful, and his name was not sent to IEBC for further processes. That he lodged a complaint with the Jubilee Party vide his letter dated 21/08/2017 which was duly received on 24/08/2017 but the complaint was not addressed or at all. He then joined the first and second Petitioners in filing the current petition.

5. The petition sought the following five prayers: -

(a)An order of declaration to be issued to declare the nomination and gazettement of the 1st , 2nd , 3rd , 4th , 5th , 6th , 7th Interested Parties by the 1st and 2nd Respondents is in violation of Articles 193, 177, 54, 27, the Election Act 2011, the regulations thereof and null and void.

(b)A declaratory order be issued to declare that the gazettement of Interested Parties was discriminatory against other applicants in the party lists and therefore unconstitutional.

(c)A declaratory order be issued requiring the 2nd Respondent to cause to be degazetted the Interested Parties accordingly.

(d)A declaratory order be issued requiring the 2nd Respondent to gazette qualified and eligible persons from the list submitted by the 1st Respondent as members of the Trans-Nzoia County Assembly.

(e)That the Respondent be ordered to bear the costs of this petition in any event.

6. Contemporaneously with the filing of the petition was the filing of an application by way of a Notice of Motion dated 06/09/2017 which sought to inter alia restrain the third Respondent from swearing-in the interested parties herein pending the determination of the application. That application was filed under a certificate of urgency and was certified as urgent and interim orders granted on 06/09/2017 by this Court (Chemitei, J.).

7. That being the background upon which the petition came into life, upon directions of this Court and on the concurrence of the Counsels, the twin objections were heard together. All Counsels, save that of the Jubilee Party, filed written submissions. However, all Counsels highlighted on the submissions accordingly.

8. Counsel for the second Respondent Mr. Yego briefly submitted that this Court lacked jurisdiction in view of the provisions of Article 88(4)(e) of the Constitution, Section 74(1A) of the Elections Act and Section 39 of the Political Parties Act. Counsel argued that the petition was in essence challenging the nomination of the interested parties by IEBC and since the names of the interested parties had already been published in the impugned notice as the duly Nominated Members of County Assembly of the Trans Nzoia then any challenge thereto could only be mounted by way of an election petition and not a constitutional petition as in this case. To that end, it was submitted that this Court lacks any jurisdiction to deal with the matter further. Counsel further referred this Court to the decision of the Supreme Court in the case of Moses Mwicigi & 14 others vs.Independent Electoral and Boundaries Commission & 5 others (2016) eKLR and the decision of the Court of Appeal in Isaiah Gichui Ndirangu & Another vs. Independent Electoral and Boundaries Commission & 4 others (2017) eKLR in buttressing the legal position. Reference was also made to various decisions that appeared in the second Respondent’s List of Authorities filed in Court on 19/09/2017.

9. It was further contended by Mr. Yego that even if this Court holds that it has jurisdiction over the matter still the petition is incompetent for having been filed in a Court (the High Court) which can only exercise an appellate jurisdiction on the matter and further for want of furnishing of the mandatory security deposit on costs. The Court of Appeal decisions in the Owners of Motor Vessel ‘Lilian S’and Kimutai vs. Lonyopeta were also cited. Counsel prayed that the objection be sustained, and the petition be dismissed with costs.

10. Mr. Khisa, Counsel appeared for the third Respondent. In urging this Court to uphold the objection by the third Respondent, Counsel fully associated himself with the submissions of Mr. Yego and added that the third Petitioner having even not been shortlisted by the Jubilee Party was to instead file a complaint in accordance with Section 39 of the Political Parties Act well before the general elections but not to file the current petition.

11. Mr. Wanyama for the Jubilee Party in supporting the objections associated himself with the submissions by Mr. Yego Counsel and added that Section 75(1A) of the Elections Act ousted the original jurisdiction of this Court. Miss Mufutu who appeared for the first, second, fourth and seventh Interested Parties supported the objections as well and referred to various authorities in the List of Authorities filed on behalf of her clients. Counsel emphasized that the Petitioners were to utilize the internal party dispute resolution mechanism or lodge complaints at the Political Parties Disputes Tribunal or file a petition before the Magistrate’s court but not before this Court.

12. Counsel for the third Interested Party Mr. Ingosi also supported the objections. He submitted that the Petitioners who were dissatisfied with the nomination were to pursue the Jubilee Party’s internal dispute resolution mechanism or lodge the complaints before the IEBC but not before this Court which clearly lacks jurisdiction over the matter. Mrs. Munialo for the fifth and sixth Interested Parties equally supported the objections and associated herself with the submissions by Mr. Yego Counsel and prayed that the petition be struck out with costs.

13. It was only Mr. Murgor, Counsel for the Petitioners who opposed the objections. Counsel took the Court through the history of the dispute and emphasized that the disputes arose after the publishing of the impugned notice well after the general elections of 08/08/2017 and as such the internal party dispute resolution mechanism or the reference to the Political Parties Tribunal were not applicable. He also submitted that since the Elections (Party Primaries and Party Lists) Regulations 2017 came into being long after the decisions referred to by the Counsels were rendered those decisions were distinguishable.

14. Counsel further submitted that the matter for determination before Court was on the violation of the Constitution by the Respondents in infringing the rights of the Petitioners and not an election petition as contemplated under the Elections Act and that this Court has unlimited jurisdiction over the matter. Counsel went ahead and pointed out the various rights allegedly infringed by the Respondents and contended that the petition was purely on the enforcement of the Bill of Rights under Article 165 of the Constitutionand not otherwise and as such the magistracy lacked jurisdiction. Mr. Murgor then prayed that the objections be dismissed with no orders as to costs.

15. In a rejoinder Mr. Yego and Mr. Khisa submitted that Article 165 of the Constitution did not have room in election matters and urged this Court to sustain their objections.

16. I have keenly read and understood the contents of the two objections, the parties' submissions and the Counsels’ both written and oral submissions. The fundamental issue for determination in this objection is whether this Court has the jurisdiction over this matter.

17. Ibrahim, JSC in Supreme Court of Kenya Civil Application No. 11 of 2016 Hon. (Lady) Justice Kalpana H. Rawal vs. Judicial Service Commission & Others when in demystifying jurisdiction quoted from the decision in Supreme Court of Nigeria Supreme Case No. 11 of 2012 Ocheja Emmanuel Dangana vs. Hon. Atai Aidoko Aliusman & 4 Others where Walter Samuel Nkanu Onnoghen, JSC expressed himself as follows: -

‘…It is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity - dead - and of no legal effect whatsoever, That is why an issue of jurisdiction is crucial and fundamental in adjudication and has to be dealt with first and foremost…’

18. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in the case of SamuelKamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -

“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

19. The Court of Appeal more recently in the case of Kakuta Maimai Hamisi -vs- Peris PesiTobiko & 2 Others (2013) eKLRhad the following to say on the centrality of the issue of jurisdiction: -

“So central and determinative is the jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings in concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cui-de-sac. Courts, like nature, must not sit in vain.”

20. It therefore follows that once a Court finds that it has no jurisdiction then it must down its tools accordingly. There are no two ways about it! However, if a Court finds that it has jurisdiction over a matter it must not hesitate to discharge its duty accordingly.

21. There are some issues which are not in dispute in this matter. They include the fact that the first and second Petitioners were shortlisted by Jubilee Party as nominees for Members of the County Assembly of Trans Nzoia and that their names were published by IEBC in the newspapers as such whereas the third Petitioner was not so shortlisted by Jubilee Party on his application; that after the conduct of the general elections of 08/08/2017 the IEBC published the impugned notice in the Kenya Gazette on 28/08/2017; that the said impugned notice did not have the names of the Petitioners among those nominated by Jubilee Party to the County Assembly of Trans Nzoia; that the names of the interested parties appeared in the impugned notice as those nominated by Jubilee Party to the County Assembly of Trans Nzoia; that the petition variously challenges the nomination and gazettement of the interested parties in the impugned notice; among others.

22. With that state of affairs, the starting point is what the law provides in the circumstances of this matter. The subject of nomination of Members to the County Assemblies (and to Parliament) and party lists has its origin in the Constitution. Since this matter relates to the membership of a County Assembly, Article 177 of the Constitution (Membership of a County Assembly) provides as follows: -

‘177. (1) A county assembly consists of

(a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;

(b) the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;

(c) the number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and

(d) the Speaker, who is an ex officio member.

(2) The members contemplated in clause (1) (b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90.

(3) The filling of special seats under clause (1) (b) shall be determined after declaration of elected members from each ward.

23. This legal provision is the source of the political parties’ mandate to nominate members to the County Assembly. The purpose of the said provision is to guarantee that no more than two-thirds of the memberships of the Assembly belong to the same gender and to furthersafeguard and ensure the representation from the marginalized groups including persons with disabilities and the youth. The members contemplated under Article 177(1)(b) and (c) above are nominated by political parties proportionate to the number of seats garnered in a) above. Those members can only be ‘drawn’ from a list which is prepared by a political party and presented to IEBC which list is eventually published in the Kenya Gazette by IEBC. That list is what is referred to as ‘the party list’.

24. Article 90 of the Constitution (Allocation of party lists seats) provides for party lists seats in the following manner: -

(1) Elections for the seats in Parliament provided for under Articles 97 (1) (c) and 98 (1) (b), (c) and (d), and for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional representation by use of party lists.

a. The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-

(a) each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1)m within the time prescribe by national legislation.

(b) except in the case of the seats provided for under Article 98 (1) (b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and

(c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.

(2) The seats mentioned in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.

25. The foregone legal provision clearly spells out specific duties on IEBC relating to inter alias the conduct and supervision of elections for seats for nomination purposes.In undertaking the said duty IEBC stands further guided by inter alia the Elections Act (hereinafter referred to as ‘the Act’) under Sections 34, 35 and 36 thereof. For purposes of this discussion I will only reproduce the relevant provisions in the said sections of the Act which include: -

’34. (6) The party lists submitted to the Commission under this section shall be in accordance with the Constitution or nomination rules of the political party concerned.

(6A) Upon receipt of the party list from a political party under subsection (1), the Commission shall review the list to ensure compliance with the prescribed regulations and -

(a)issue the political party with a certificate of compliance; or

(b)require the political party to amend the party list to ensure such compliance failing which the Commission shall reject the list.

(6B)For purposes of subsection (6A), the Commission may, be notice in the gazette, issues regulations prescribing guidelines to be complied with in preparation of party lists.

(7)The party lists submitted to the Commission shall be valid for the term of Parliament.

(8)A person who is nominated by a political party under subsection (2), (3) and (4) shall be a person who is a member of the political party on the date of submission of the party list by the political party.

(9)The party list shall not contain a name of a candidate nominated for an election.

(10)A party list submitted for purposes of subsections (2), (3), (4) and (5) shall not be amended during the term of Parliament or the County Assembly, as the case may be, for which the candidates are elected.

35. A political party shall submit its party list to the Commission at least forty-five days before the date of the general election.

36. (1) A party list submitted by a political party under-

(e)Article 177 (1) (b) of the Constitution shall include a list of the number of candidates reflecting the number of wards in the county;

(f)Article 177 (1) (c) of the Constitution shall include eight candidates, at least two of whom shall be persons with disability, two of whom shall be the youth and two of whom shall be person representing a marginalized group

(2)A party list submitted under subsection (1) (a), (c), (d), (e) and (f) shall contain alternates between male and female candidates in the priority in which they are listed.

(3) The party list referred to under subsection (1) (f) shall priorities a person with disability, the youth and any other candidate representing a marginalized group.

(4)Within thirty days after the declaration of the election results, the Commission shall designate, from each qualifying list, the party representatives on the basis of proportional representation.

(7)For purposes of Article 177 (1) (b) of the Constitution, the Commission shall draw from the list under subsection (1) (e), such number of special seat members in the order given by the party, necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender.

(8)For purposes of Article 177 (1) (c) of the Constitution, the Commission shall draw from the list under subsection (1) (f) four special seat members in the order given by the party.

(9)The allocation of seats by the Commission under Article 177(1) (b) and (c) of the Constitution shall be proportional to the number of seats won by the party under Article 177 (1) (a) of the Constitution.

37. (1) If a representative from a political party list dies, withdraws from the party list, changes parties, resigns or is expelled from his or her party during the term of the representative, the seat of the representative shall be allocated to the next candidate of the same gender on the respective political party list.

(2) Notwithstanding the provision of Section 34 (10), if there are no more candidates on the same party's list, the Commission shall require the concerned political party to nominate another candidate within twenty -one days.

(3) A vacancy in any seat in a political party list shall not be filled three months immediately before a general election.

(4)Where a political party fails to comply with the provisions of subsection (2) the Commission shall not allocate the seat for the remainder of the term of Parliament or the County Assembly.

26. Further guidance on party lists is provided under Part X of the Elections (General) Regulations, 2012 (hereinafter referred to as ‘the Regulations’) being Regulations 54 to 56B inclusive. That is the legal rubric on party lists.

27. However, during either the preparation or implementation of the party list a dispute may arise. That is the case in this matter. The law contemplated such scenarios as well. To that end the law made a complete provision for all electoral disputes including those likely to arise from the party lists. The Constitution under Article 87(Electoral disputes) provides as follows: -

“(1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.

(2)Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

(3)Service of a petition may be direct or by advertisement in a newspaper with national circulation.”

28. The Constitution further created the institution of IEBC in Article 88. One of the constitutional responsibilities bestowed upon IEBC relates to settling of electoral disputes. Article 88(4)(e) provides as follows: -

“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.”

29. The legislation on electoral disputes contemplated under Article 87(1) of the Constitution is the Act. Like in the case of Article 88(4)(e) of the Constitution, Section 74 of the Act also mandates IEBC to resolve disputes arising from nominations but not election disputes. That section provides as follows: -

‘(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 bedetermined before the date of the nomination or election, whichever isapplicable.”

30. It therefore follows that the Constitutionand the Act bars IEBC from dealing with disputes relating to elections or disputes after an election. The disputes falling outside the ambit of IEBC become the preserve of the election courts. Section 2 of the Act describes an ‘election court’ as: -

“The Supreme Court in exercise of the jurisdiction conferred upon it by Article 163 (3) (a) or the High Court in the exercise of the jurisdiction conferred upon it by Article 165 (3) (a) of the Constitution or the Resident Magistrate’s Court designated by the Chief Justice in accordance with Section 75 of this Act.”

31. As the petition herein was filed after the conduct of the general elections of 08/08/2017 it is hence clear that IEBC has no jurisdiction over the matter.

32. That being the position the question which now begs an answer is whether on the face of the law and facts, the High Court, as a Constitutional Court, has jurisdiction over the petition. To be able to answer the question, a determination as to whether a dispute arising from a party list is an election dispute must be made, but first a look at the jurisdiction of the High Court.

33. The jurisdiction of the High Court is donated under Article 165(3) of the Constitutionwhich states that: -

‘(3) Subject to Clause 5, the High Court shall have -

(a) unlimited original jurisdiction in criminal and civil matters;

(b) Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of –

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191; and

(e) Any other jurisdiction, original or appellate, conferred on it by legislation.

34. Apart from the foregone specific jurisdiction any other jurisdiction on the High Court must be donated by a legislation. It is on that basis that Section 2 of the Act donated a special jurisdiction to the High Court as one of the election courts. The Supreme Court of Kenya in the case of Lemanken Aramat v. Harun Maitaml Lempaka & 2 others (2014) eKLR (Petition No. 5 of 2014) had the following to say on the subject: -

“[82] The original jurisdiction of the High Court in criminal and civil matters, by Article 165(3)(a) of the Constitution, is unlimited. In addition, the High Court has a special jurisdiction in electoral matters, conferred by the Constitution, and given effect under the Elections Act: this is the jurisdiction to determine any question as to whether a person has been validly elected as a Member of Parliament (Article 105(1)(a) of the Constitution). This jurisdiction is activated upon a declaration by the authorized electoral body (IEBC) that a particular person has been returned as Member of Parliament, when there is a challenge to that electoral declaration (Article 87(2) of the Constitution) ………’”(emphasis added).

35. Having laid the jurisdictional context of the High Court, I now revert to the question at hand. This question is by now well settled by precedents. The Supreme Court case of MosesMwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5others (2016) eKLR answered the question with such clarity. The dispute in that case was like the one before this Court. The matter began in the High Court with two separate proceedings. There was Nairobi Judicial Review No. 218 of 2013 where the applicants sought an order of certiorari to quash the decision of the IEBC Nomination Dispute Resolutions Committee which dismissed their complaints on inter alia the grounds that the dispute on the party lists was a purely internal matter within a political party and the parties ought to have invoked the party’s dispute resolution mechanism or moved to the Political Parties Disputes Tribunal. The High Court (Mumbi, Majanja and Korir, JJ.) dismissed the Judicial Review application in light of the reasoning of the IEBC Nomination Tribunal on account of lack of jurisdiction. The other proceedings were in Nairobi High Court Constitutional Petition No.238 of 2013 where the Petitioners sought a declaration that the list of nominees to the Nyandarua County Assembly published in the IEBC website violated Articles 90, 98, 174 and 177 of the Constitution. This petition was also dismissed on the holding that the mode of distribution of the nomination slots was a party matter and the High Court lacked jurisdiction.

36. Both matters generated appeals to the Court of Appeal which appeals were consolidated and heard together. They were Appeals No. 224 of2013 and No. 238of 2013. The Court of Appeal in its judgment faulted the High Court in declining jurisdiction and proceeded to quash the decision of the IEBC Nomination Dispute Resolutions Committee and revoked the Gazette Notice by IEBC and ordered TNA Party to submit a fresh party list within 7 days of the order. The Court also declared that the IEBC’s list of nominees to the Nyandarua County Assembly in its website violated the provisions of Articles 90, 98, 174 and 177 of the Constitution and further that it was unconstitutional to the extent that it purported to discriminate against some constituencies in the County. The dispute then found its way to the Supreme Court.

37. Among the several questions which the Supreme Court answered in its decision rendered on 26/04/2016 include two which are very central in this matter. Those questions are ‘At what point did the appellants become ‘elected’ MCAs for Nyandarua County and at what point in time does the Court become clothed with jurisdiction to determine disputes relating to the nomination of members of a County Assembly, by virtue of Article 177(2) (b) of the Constitution.’ The Court, in an in-depth analysis and in consideration of the Constitution, the Elections Act, the Independent Electoral and Boundaries Commission Act, the Political Parties Act, the Elections (General) Regulations and other relevant judicial decisions answered the said twin questions in paragraphs 91 to 107 inclusive of its judgment. For purposes of this discussion I will reproduce hereunder paragraphs 95, 96, 102, 103, 104, 105, 106 and 107 of the said judgment and as follows” -

“95. The effect is that, the process of preparation of the party list is an internal affair of the Political Party, which ought to proceed in accordance with the national Constitution, the Political Party Constitution, and the nomination rules as prescribed under Regulation 55.

96. A political party has the obligation to present the party list to IEBC, which after ensuring compliance, takes the requisite steps to finalize the “elections” for these special seats. In the event of non-compliance by a political party, IEBC has power to reject the party list, and to require the omission to be rectified, by submitting a fresh party list or by amending the list already submitted.

102. Article 90(2) of the Constitution provides that the IEBC shall be responsible for the conduct and supervision of elections, in respect of seats provided for under clause (1). Seats in this category include the special seats provided for under Article 177 (1) (b) and (c) of the Constitution. And these seats, by Article 90(3), “shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.”

103. Section 36(4) of the Elections Act provides that “within thirty days after the declaration of the election results, the Commission shall designate, from each qualifying list, the party representatives on the basis of proportional representation.”

104. Section 36 (7) (8) and (9) of the Act, with regard to nominations for County Assembly, thus provides:

“(7) For purposes of Article 177 (1) (b) of the Constitution, the Commission shall draw from the list under subsection (1) (e), such number of special seat members in the order given by the party, necessary to ensure that no more than two-thirds of the membership of the ssembly are of the same gender,

“(8) For purposes of Article 177 (1) (c) of the Constitution, the Commission shall draw from the list under subsection (1) (f) four special seat members in the order given by the party.

(9) The allocation of seats by the Commission under Article 177 (1) (b) and (c) of the Constitution shall be proportional to the number of seats won by the party under Article 177 (1) (a) of the Constitution.”

105. It is clear from the foregoing provisions that the allocation of nomination-seats by the IEBC is a time bound process, that starts with the proportional determination of the number of seats due to each political party. On that basis, IEBC then 'designates', or 'draws from' the allocated list the number of nominees required to join the County Assembly. To 'designate' or draw from' entails the act of selecting from the list provided by the political party. It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees' names by the IEBC , as an integral part of the election process.

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. On the other hand, an “election by registered voters”, as was held in the Joho Case, is in principle, completed by the issuance of Form 38, which terminates the returning officer's mandate, and shifts any issue as to the validity of results from the IEBC to the Election Court.

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 Election 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.

38. The issue of the ‘election of nominated members’ to the County Assembly and Parliament was also dealt with by the Court of Appeal in the case of Rose Wairimu Kamau & 3 others vs. IEBC C.A. No. 169 of 2013. In a concurrent finding the Court had the following to say: -

'…..In reaching the conclusion, we are alive to the fact that once nominees to Parliament and County Assemblies under Articles 971 (c) 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 Articles 105 of the Constitution or Part VIII of the Elections Act as the case may be.”(emphasis)

39. Differently constituted, the Court of Appeal in the case of Jaldesa Tuke Debalo vs.Independent Electoral and Boundaries Commission and Another (2015) eKLR again had the following to say: -

“We are cognizant of the principle that upon gazettement of members of the County Assembly, they are deemed to be elected members of the County Assembly...”

40. It is therefore settled that once IEBC publishes the Gazette Notice of the names of the nominees to the County Assembly then that marks the end of the nomination process and the people whose names so appear in the notice stand ‘elected’’ into the County Assembly. It is also settled that any challenge to that ‘election by nomination’ can only be entertained by way of an election petition and not otherwise.

41. The Supreme Court in the Moses Mwicigi case (supra) also had an opportunity of addressing its legal mind to the argument that the petition therein was a pure constitutional petition for vindication of the fundamental rights as enshrined in the Bill of Rights and not an election petition as envisaged in law. The Court had the following to say: -

“117. It is clear to us that the Constitution provides for two modes of 'election'. The first is election in the conventional sense, of universal suffrage; the second is 'election' by way of nomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of 'election petition'.

119. To allow an electoral dispute to be transmuted 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.”

I say no more.

42. I therefore find that the petition herein relates to an election dispute and ought to have been filed in an election court. The High Court, as a Constitutional Court, has no jurisdiction over this matter. Further, the appropriate election court in this case is the Resident’s Magistrate’s Court pursuant to Section 75(1A) of the Act and again, not the High Court.

43. As I come to the end of this ruling I wish to state that from the foregone discourse the third Petitioner had the option of challenging the Jubilee Party’s refusal to shortlist him for nomination through the party internal dispute resolution process or by lodging an appropriate complaint before the Political Parties Disputes Tribunal as what he complained of happened way before the conduct of the general elections. Further, the third Petitioner had another option, together with the other Petitioners, to challenge the nomination of the interested parties after the publication of the impugned notice by way of an election petition. That however did not happen.

44. From the foregone discourse and in consideration of the facts of this case and the applicable law, I am satisfied that this Court lacks the jurisdiction to entertain this petition.As a consequence thereof, the following final orders do hereby issue: -

(a) This Court has no jurisdiction in this matter.

(b) The Petition and the Notice of Motion both dated 05/09/2017 be and are hereby struck out.

(c) The interim orders granted on 06/09/2017 be and are hereby discharged.

(d) Each party do bear its own costs.

Those are the orders of this Court.

DELIVERED, DATED and SIGNED at KITALE this 07th day of December 2017.

A. C. MRIMA

JUDGE

Ruling delivered in open Court and in the presence of:

Mr. Murgor Counsel for the Petitioner.

Mr. WanyamaCounsel for the first Respondent.

Mr. Yego Counsel for the second Respondent

Mr. KhisaCounsel for the third Respondent

Miss MufutuCounsel for the first, second, fourth and seventh Interested Parties

Mr. Ingosi Counsel for the third Interested Party

Mrs. MunialoCounsel for the fifth and sixth Interested Parties

Kirong– Court Assistant