[2022] KEHC 1605 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

PETITION NO. E092 OF 2022

BETWEEN

CLIFFORD KEYA............................................................................PETITIONER

VERSUS

JACKLINE INGUITIAH...........................................................1ST RESPONDENT

ANNA KONUCHE.................................................................... 2ND RESPONDENT

CHRISTINE KIPSANG........................................................... 3RD RESPONDENT

ATTORNEY GENERAL........................................................... 4TH RESPONDENT

THE LAW SOCIETY OF KENYA........................................... 5TH RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION..................................................6TH RESPONDENT

AND

ATIENO AOKO............................................................... 1ST INTERESTED PARTY

JANE NYABOKE.............................................................2ND INTERESTED PARTY

JULIE SOWETO............................................................. 3RD INTERESTED PARTY

THE LSK ELECTIONS BOARD....................................4TH INTERESTED PARTY

RULING NO. 1

Introduction:

1. The Law Society of Kenya (hereinafter variously referred to as ‘the LSK’ or ‘the Society’ or ‘the 5th Respondent’) is a society comprised of the members of the legal fraternity which is established under Section 3 of the Law Society of Kenya Act, No. 21 of 2014 (hereinafter referred to as ‘the LSK Act’).

2. The Petitioner herein, Clifford Keya, is an Advocate of the High Court of Kenya and a member of the Society. He is aggrieved by what he alleged to be the blatant violation of Article 171 of the Constitution by the LSK Elections Board (hereinafter variously referred to as ‘the Elections Board’ or ‘the 4th Interested Party’) in approving the nomination of Jackline Ingutiah, Anna Konuche and Christine Kipsang to vie for the position of the LSK Female Representative to the Judicial Service Commission in the Society’s elections slated for this morning.

3. To that end, the Petitioner filed a Petition dated 6th March, 2022. He also filed an evenly dated Notice of Motion seeking conservatory orders.

4. The Petition was opposed by the rest of the parties save the Hon. Attorney General, the Independent Electoral and Boundaries Commission, Atieno Aoko and Julie Soweto who did not take part in the proceedings.

5. Jackline Ingutiah, Anna Konuche, Christine Kipsang and the LSK Elections Board submitted that they had filed preliminary objections all dated 9th March, 2022 respectively.

6. The objections were opposed by the Petitioner and the 2nd Interested Party herein one Jane Nyaboke.

7. On directions of this Court, all the objections and the prayer for interim conservatory orders were heard together, hence this ruling.

The Preliminary Objections:

8. The grounds in support of the objection by Jackline Ingutiah, the 1st Respondent herein, were tailored as follows: -

1. The Petition and Application usurp the alternative-dispute jurisdiction and mandate of the Elections Board under Regulation 27(4) of the Law Society of Kenya Regulations, 2020 to "scrutinize the nomination papers submitted by applicants", "determine whether a person has validly been nominated"; and "resolve disputes or complaints relating to the elections"

2. The Petition and application both offend section 9 of the Fair Administrative Action Act, 2015. That section forbids the High Court from assuming jurisdiction in matters (like this one) where a party does not exhaust internal remedies or apply, demonstrating exceptional circumstances for exemption. This section 9 rule of primary jurisdiction is constitutionally underpinned by Article 159(c) of the Constitution, requiring this court to promote, and not to usurp, alternative modes of dispute resolution. Keya did not seek exemption from the duty to exhaust.

3. The other preliminary and fundamental defect discernible from the face of the Petition and Motion is that they both fail the test of precision as per Anarita. Keya files this case as a constitutional Petition but does not plead how any single article of the Constitution has been threatened or violated.

9. The 2nd Respondent herein, Anna Konuche, preferred the following grounds of objection: -

1. The Honourable court does not have requisite jurisdiction to hear and determine the matter raised in the instant petition pursuant to section 27 of the Law Society of Kenya Regulations 2020.

2. The petition is improperly, improcedurally, wrongfully and illegally in court pursuant to the failure by the petitioner to adhere to Section 9 (2) and (3) of fair administrative actions.

10. Christine Kipsang, the 3rd Respondent herein, preferred the following grounds of objection: -

a)Local remedies have not been exhausted, as no complaint was filed with the Law Society of Kenya or the Law Society Elections Board.

b)It is not the mandate of the court to clear candidates for election of Law Society of Kenya representative to the Judicial Service Commission.

11. Counsel appearing for the LSK Elections Board, the 4th Interested Party herein, informed this Court that the 4th Interested Party had filed an objection dated 9th March, 2022. Although the Petitioner’s Counsel confirmed having been served with the said objection, the same is missing from the Court’s electronic portal. As such, this Court did not benefit from the grounds thereof. The Court, therefore, deems the said objection as having not been filed in the current proceedings.

12. This Court will, hence and in the first instance, consider the objections by Jackline Ingutiah, Anna Konuche and Christine Kipsang. In the event the objections are overruled, the Court will then consider whether to issue any interim orders.

The Submissions on the objections:

13. Mr. Ochiel Dudley, Counsel for the 1st Respondent, Mr. Moses Kurgat leading Mr. Omwanza for the 2nd Respondent, Miss Sheila Mugo and Mr. Ashford Muriuki for the 3rd Respondent, Dr. B. M. Musau for the 5th Respondent and Mr. Luci for the 4th Interested Party were all in support of the objections.

14. The objections were argued in two fronts. The first common thrust was that the Petitioner had failed to exhaust the available internal dispute resolution mechanism under the LSK Act and the Law Society of Kenya Act (General) Regulations, 2020 (hereinafter referred to as ‘the Regulations’).

15. It was variously submitted that the Petitioner did not comply with Section 9 of the Fair Administrative Action Act, 2015 which section forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies or apply, demonstrating exceptional circumstances for exemption.

16. Having failed to demonstrate any exceptional circumstances, it was alluded that the Petitioner had to submit to the dispute resolution procedure provided for in Regulation 27 by first laying the complaint before the Elections Board.

17. This Court was, hence, urged to down its tools as its jurisdiction was deferred at the moment.

18. Several decisions were referred to in support of the above position.

19. There was another argument in support of the objections. Counsel submitted that the Petition was inept of precision. It was contended that the Petitioner failed to specify the provisions of the Constitution allegedly contravened and the manner of contravention. That, the Petition was hollow and with no substance to call for any response.

20. Decisions buttressing the foregoing were referred to.

21. In the main, the Court was urged to dismiss the Petition with costs.

22. The Petitioner and the 2nd Interested Party opposed the objections. Mr. Nyakiangana Counsel appeared for the Petitioner whereas Mr. Nyangoro Counsel appeared for the 2nd Interested Party.

23. Contending that the submission that this Court lacked jurisdiction over the matter was unfounded, Mr. Nyakiangana posited that the Elections Board could only hear an election dispute, but did not have any powers to grant any relief including nullification of a nomination.

24. Counsel further submitted that the Regulations gave the Elections Board the power to deal with election disputes after the declaration of results of an election, which in this case there was no such dispute as the elections were yet to be conducted. In other words, the Elections Board did not have any jurisdiction over disputes relating to an election which arise before the declaration of results. In that case, it was submitted that it was only the High Court which had jurisdiction under Article 22 of the Constitution to deal with the matter at hand.

25. Mr. Nyangoro vouched the submissions by Mr. Nyakiangana.

26. Counsel further reiterated that since the Petition demonstrated that there was a violation of the Constitution, then this Court ought to intervene and issue conservatory orders so as to preserve the sanctity of the Constitution.

27. In sum, the Petitioner and the 2nd Interested Party called upon this Court to dismiss the objections.

Whether the objections are sustainable:

28. Objections to the jurisdiction of a Court can be raised in many ways. In this matter, the objections are by way of preliminary objections.

29. It is a well settled principle in law that preliminary objections are premised on pure issues of law capable of disposing disputes at the earliest possible instance. A Court is, hence, called upon to ascertain that preliminary objections are not caught up within the realm of factual issues that would invite the calling of evidence.

30. Various Courts have vouched the foregoing legal position. In Mukisa Biscuit Manufacturers Ltd -vs- Westend DistributorsLtd, (1969) E.A. 696 page 700 the Court observed as follows: -

...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.

...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.

31. In Civil Suit No. 85 of 1992, Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J, as he then was, cited with approval the position in Mukisa Biscuit -vs- West End Distributors(supra) and stated as follows on the operation of preliminary objection: -

…. I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.

32. In Omondi -vs- National Bank of Kenya Ltd & Others{2001} KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that the objection must raise pure points of law. It was held thus: -

…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion.

33. On the question as to whether jurisdiction is a point of law, the Supreme Court in Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR,stated that ‘jurisdiction is a pure question of law’and should be resolved on priority basis.

34. Having settled that jurisdictional issues constitute pure points of law and can be raised by way of preliminary objections, I will now briefly look at the doctrine of jurisdiction in general.

What jurisdiction is about:

35. How is jurisdiction defined? Jurisdictionis defined in Halsbury’s Laws of England(4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”.Black’sLaw Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.

36. In Words and Phrases Legally DefinedVol. 3, John Beecroft Saunders defines jurisdiction as follows:

By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

37. That, jurisdiction is so central in judicial proceedings, is a well settled principle in law. A Court acting without jurisdiction is acting in vain. All it engages in is nullity. Nyarangi, JA, in Owners ofMotor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited[1989] KLR 1 expressed himself as follows on the issue of jurisdiction: -

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…

38. Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & anotherCivil Appeal No. 103 of 2016 [2018] eKLR stated as follows: -

Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Courtin Adero & Another vs. Ulinzi Sacco Society Limited [2002] 1 KLR 577, as follows;

1) ……..

2) The jurisdiction either exists or does not ab initio …

3) Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.

4) Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

39. On the centrality of jurisdiction, the Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLRstated that: -

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.

40. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau 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.

41. And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -

[44] …. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...

42. From the foregoing, it is sufficiently settled that a Court’s jurisdiction is derived from the Constitution, an Act of Parliament or both.

The crux of the objections:

43. The heart of the objections under consideration was whether the Court’s jurisdiction stand deferred on the basis of the exhaustion doctrine.

44. To that end, Counsel made elaborate submissions and referred to several decisions. This Court is grateful to all.

45. The Court will, however, not reproduce the submissions made and the decisions referred to verbatim in the interest of time and also in order to avoid repetition.

46. Having said so, suffice to state that the doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable.

47. The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution.

48. The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act, 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.

49. Recently, this Court dealt with the nature and the applicability of the doctrine of exhaustion in Nairobi High Court Constitutional Petition No. E070 of 2022 Jamlick Muriithi Mwenda versus The Law Society of Kenya & 10 Others (unreported). For ease of the discussion herein, I will reiterate what I stated in that matter, as under: -

43. The doctrine of exhaustion appears to be closely intertwined with the doctrine of constitutional avoidancewhich doctrine is also referred to as the constitutional avoidance rule. The doctrine is part of the wider doctrine of non-justiciability.

44. Speaking to the doctrine of constitutional avoidance, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLRobserved thus: -

[105]. We shall now turn to theConstitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:

“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”

[106]. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLRheld:

[256]. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.

45. On the applicability of the doctrine of exhaustion in Kenya, suffice to say that the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -

159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-

(a)…

(b)…

(c) alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

46. Clause 3 is on traditional dispute resolution mechanisms.

47. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench inMombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:

52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine 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 encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:

42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:

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.

43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.

This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:

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. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

48. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -

59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:

What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)

60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.

61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.

62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.

49. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLRheld as follows: -

The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.

At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs. Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.

50. Further, in Civil Appeal 158 of 2017,Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another[2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -

23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.

51. The High Court has variously reiterated the position that it is only the High Court and Courts of equal status which can interpret the Constitution. (SeeRoyal Media Services Ltd. -vs- Attorney General & 6 Others(2015) eKLR among others).

52. Having dealt with the jurisprudential aspect of the exhaustion doctrine, I will now deal with the first issue.

50. On the basis of the foregoing, I will now ascertain whether the doctrine of exhaustion is applicable in this matter.

51. The Petitioner did not object to the applicability of the doctrine in constitutional Petitions in general. What he attempted to do was to demonstrate that the doctrine was inapplicable in this matter.

52. In a bid to sustain the said position, the Petitioner argued that the proposed alternative avenue to the Elections Board was not available since the Elections Board did not have any powers to grant the reliefs sought. According to the Petitioner, the Elections Board could only deal with disputes arising from the declaration of results of an election and not before.

53. The Petitioner, therefore, relied on the second exception principle as discussed in R. vs. Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) case (supra).In essence, the Petitioner argued that the Elections Board was not the appropriate forum for proper adjudication of the dispute. He decried that he will not have the quality of audience before the Elections Board which is proportionate to the interests he wished to advance in this matter.

54. The jurisdiction and powers of the Elections Board are among many issues which have been severally dealt with by Courts.

55. In Jamlick Muriithi Mwenda versus The Law Society of Kenya & 10 Others case (supra) this Court elaborately dealt with the issues. Since I still hold to the interpretation of the law therein, I will herein reiterate what I stated therein and as follows: -

56. Part IV of the Regulations provide for Elections to Council. Regulation 25 is on the nature and integrity of the electoral system while Regulation 26 provides for the approval of the electoral body.

57. The establishment of an Elections Board is in Regulation 27. The Board is an ad-hoc entity.

58. The functions of the Elections Board are provided under sub-regulation 5 as to: -

(a) scrutinise the nomination papers submitted by Applicants;

(b) determine whether a person has validly been nominated;

(c) resolve disputes or complaints relating to the elections;

(d) deal with an election for the purpose of filling a vacancy in the Council arising within the period before the establishment of a new ad hoc elections board; and

(e) ensure that the electoral system, including electronic system of voting, and electoral processes are in accordance with the principles and requirements under this Part.

(Emphasis added).

59. The Elections Board is supposed regulate its own proceedings, but subject to Regulation 44.

60. Regulation 44 states as follows: -

44. Settlement of election disputes.

(1) A person who is aggrieved by the results of an election may, within 7 days of the announcement of the results, lodge a complaint in writing to the elections board.

(2) A complaint shall contain all the grounds, facts and evidence intended to be relied upon and shall set out the legal provision alleged to have been contravened.

(3) An applicant shall serve the complaint to the affected named parties within 3 days of lodging the complaint.

(5) The elections board shall expeditiously hear and determine the dispute or complaint referred, regard being had to the timelines set out under these Regulations.

(6) The elections board shall determine the complaint within not more than 14 days from the date of lodging the complaint.

(7) The elections board shall deliver a written, reasoned, decision on a date and time duly notified to the parties.

(8) The elections board shall have power to—

(a) cancel or nullify the nomination of a person;

(b) impose a condition on a candidate;

(c) nullify the election of a candidate

(d) declare a candidate to be duly elected; or

(e) make such orders as it may consider just in the circumstances

(9) The elections board may, for sufficient cause, allow a person to be enjoined as a party to a complaint before it.

(10) The decision of the majority of the members of the elections board shall be the decision of the board.

(11) A person who is dissatisfied with the decision of the elections board may appeal to the High Court within 14 days of the decision, and the law for the time being applicable to civil appeals shall, with necessary modification, apply to the appeal.

(12) Where an election is nullified, fresh election shall be held for the affected office, within 90 days.

(Emphasis added).

56. On the powers of the Elections Board to deal with all disputes arising from the nomination of candidates to the declaration of results, the Court stated thus: -

61. From the twin regulations, it is apparent that the Elections Board has the duty to, among others, scrutinise the nomination papers submitted by Applicants, to determine whether a person has validly been nominated and to resolve disputes or complaints relating to the elections. In discharging those functions, the Elections Board is empowered, inter alia, to cancel or nullify the nomination of a person, to impose a condition on a candidate, to nullify the election of a candidate, to declare a candidate to be duly elected and to make such orders as it may consider just in the circumstances.

62. It is, therefore, the standing position that the Elections Board has powers to deal with all disputes arising from the nomination of candidates to the declaration of results.

57. The Court also dealt with the issue of elections being a process and not an event. It rendered as follows: -

63. This Court finds legitimacy in the foregoing by dint of the finding of the Supreme Court to the effect that elections are a process and not an event. It is of importance to disclose that this Court dealt with the issue at hand in some length in Nairobi Petition No. E369 of 2020 Kennedy Irungu Ngodi & Another vs. Mary Waithera Njoroge & 11 Others (2021) eKLR.

64. In that case, I rendered myself as follows: -

79. Courts have addressed themselves to the entire process of elections and nominations in our country. The Supreme Court in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate case (supra) stated as follows in respect to the electoral process: -

[100] …. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages. Article 137 of the Constitution provides for “qualifications and disqualifications for election as President” – and this touches on the tasks of agencies such as political parties which deal with early stages of nomination; it touches also on election management by the Independent Electoral and Boundaries Commission (IEBC). Therefore, outside the framework of the events of the day of Presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties. Yet still, the dispute would still have clear bearing on the conduct of the Presidential election.

80. More recently, in Petition 2 & 4 of 2017 (Consolidated), John Harun Mwau & 2 others -vs- Independent Electoral and Boundaries Commission & 2 others [2017] eKLR,the Apex Court grappled with the issue whether failure to conduct nominations for purposes of elections rendered the electoral process unconstitutional.

81. In a synopsis, it was the Petitioners’ case that upon nullification of the election held on 8th August 2017, all process pertaining to that election had been spent and as such were no longer usable in any other presidential election. They claimed that failure to nominate the 3rd Respondent (President Uhuru Kenyatta) as required under various provisions of the Constitution and Elections Act made him unqualified to participate in the fresh Presidential elections.

82. The Petitioners claimed that nomination under Article 137 of the Constitution and Section 14 of the Elections Act was a requirement under any election and as such fresh nominations was mandatory. On the foregoing, the Petitioners sought to nullify the presidential election.

83. In rebutting the proposition, the Respondents stated that based on the Supreme Court decision in Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR, where presidential election was invalidated, there would be no need for fresh nominations. Candidates would be limited to the President-elect and those who had contested the first election. It was further their case that the repeat election was sui-generis and required no fresh nominations.

84. On the same issue, the 1st Interested-Party, Dr. Ekuru Aukot stated that there was no need for fresh nominations due to impracticalities occasioned by constitutional time-frames.

85. In resolving the rival positions, the Supreme Court comprehensively addressed the electoral process in Kenya. It shed light to the place of nominations in election process in Kenya. The Learned Judges observed:

[231] The nomination process is deeply rooted in the Constitution, which recognizes that an electoral contest must be preceded by the nomination of candidates to vie for elective positions.

86. The Court in reference to presidential election and the requirements under to Article 138(8) of the Constitution further pointed out the centrality of nomination and the fact that presidential election shall be cancelled if no person has been nominated. It then made an important remark on what nominations are in the electoral process. The Court observed as follows: -

…Nomination, therefore, is not just a formality, or an exercise in futility, nor can it be dispensed with, save for lawful cause.

…In summary, therefore, at a general level, nomination is depicted as a process through which candidates are identified for participation in an election, subject to them being properly qualified under the law, for the elective seat that they seek. It is a critical component of an electoral process, without which there would be no election.(emphasis added)

87. From the above analysis it can be only the case that the whole concept of election is a process. The electoral process has several components. Nomination is one such components in the line.Nominationis, therefore, inseparably conjoined to elections in an electoral process. The two cannot be divorced or isolated as distinct and totally independent events.

88. Accordingly, in a row of falling dominos, nomination is the first domino (‘the inciting incident’) that once tipped, launches a succession of chain of events that ultimately gets one announced as a validly elected candidate.

65. The foregoing discussion, therefore, buttresses the legal position that an election is a process and not an event.

58. In the end, the Court summed up the jurisdiction of the Elections Board as under: -

66. Having so found, the submission by the Petitioner that Regulation 44 is only applicable to disputes arising from the declaration of results cannot hold. A holistic and purposive interpretation of Regulations 27(5) and 44 yields that the Elections Board has jurisdiction to deal with all disputes from the nomination of candidates to the declaration of results. For avoidance of doubt, Regulation 44 will, hence, apply with the necessary modifications depending on the nature of the dispute at hand.

59. Arising from the foregoing, it comes to the fore that the position taken by the Petitioner that the Elections Board is akin to a toothless dog, one which only barks, but cannot bite, is erroneous. It is in fact a misconception of the law. As demonstrated above, the Elections Board is properly clothed with jurisdiction to deal with all disputes from the nomination of candidates to the declaration of results.

60. The attempt by the Petitioner to demonstrate that the doctrine of exhaustion does not apply in this matter hence seems to be unsuccessful.

61. As the Petitioner did not, in the first instance, submit to the Elections Board or demonstrate any holding exception thereto, the jurisdiction of this Court stands deferred.

62. The upshot is that the Petitioner lacks audience before this Court. The Petitioner’s legal journey must now come to an end.

63. With such a finding, there is no benefit which is likely to be derived in dealing with the other limb of the objection on whether the Petition was tailored with precision. I choose to stop here.

Disposition:

64. As I come to the end of this ruling, this Court remains grateful and acknowledges the courteous manner in which all the Counsel presented themselves before Court in the course of the gruelling hearing which took most of the day and led to the adjournment of the hearing of other matters scheduled for yesterday.

65. In the end, this Court finds that the Petition and the Notice of Motion dated 6th March, 2022 are unsustainable.

66. Consequently, the following final orders do hereby issue: -

(a) This Court lacks jurisdiction to entertain the Petition on account of the doctrine of exhaustion.

(b) The Petition and the Notice of Motion dated 6th March, 2022 are hereby struck out.

(c) Given the nature of the litigation, each party shall bear its own costs.

Orders accordingly.

DELIVERED, DATEDandSIGNED atNAIROBIthis10th March, 2022.

A. C. MRIMA

JUDGE

Ruling No. 1virtually delivered in the presence of:

Mr. J. Nyakiangana, Learned Counsel for the Petitioner.

Mr. Dudley Ochiel, Learned Counsel for the 1st Respondent.

Mr. Moses Kurgat, Learned Counsel for the 2nd Respondent.

Mr. Ashford Muriuki, Learned Counsel for the 3rd Respondent.

Dr. B. M. Musau,Learned Counsel for the 5th Respondent.

Mr. Nyangoso, Learned Counsel for the 2nd Interested Party.

Mr. Luci, Learned Counsel for the 4th Interested Party.

Elizabeth Wanjohi –Court Assistant.