[2017] KEHC 3102 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

ELECTION PETITION NO. 10 OF 2017

IN THE MATTER OF: AN ELECTION OF THE SPEAKER OF THE COUNTY ASSEMBLY OF MIGORI

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE ELECTIONS ACT

AND

IN THE MATTER OF:THE MIGORI COUNTY ASSEMBLY STANDING ORDER NO. 5

AND

IN THE MATTER OF A PETITION BY

DAVID KERARIO MARWA………….....................................PETITIONER

VERSUS

BOAZ AWITI OKOTH…………....................................1st RESPONDENT

CLERK TO COUNTY ASSEMBLY OF MIGORI……. 2nd RESPONDENT

RULING NO. 2

Introduction:

1. This ruling relates to two applications filed by each of the Respondents herein following the issuance of interim orders by this Court on 05/09/2017. This Court had by its said orders inter alia temporarily restrained the original First Respondent, Boaz Awiti Okoth, from discharging the duties of the Speaker of the County Assembly of Migori County pending the designation of a Magistrate to deal with this matter further. Both applications are largely seeking the review, vacation and/or setting aside of the said interim orders.

2. The application by the original first Respondent herein, Boaz Awiti Okoth, (hereinafter referred to as ‘the first application’) is dated 11/09/2017 and was filed on 12/09/2017. It is supported by the Affidavit of the Boaz Awiti Okoth sworn on 11/09/2017 and a Further Affidavit of the said Boaz Awiti Okoth sworn and evenly filed on 20/09/2017.

3. There is also the application by the original second Respondent herein, Clerk to County Assembly of Migori, (hereinafter referred to as ‘the second application’). It is dated 08/09/2017 and was filed on 11/09/2017. It is supported by the Affidavit of Tom Opere Onyango, the Clerk to the County Assembly of Migori County, sworn on 08/09/2017.

4. Both applications were certified urgent on filing and later directions were given on the hearing. Upon filing of the responses and written submissions the matter was fixed for highlighting of the submissions thereby paving the way to this ruling.

The First Application: -

5. This application is by way of a Notice of Motion brought under Sections 3, 3A, Order 45(1) of the Civil Procedure Act, Article 178 of the Constitution, County Standing Order 13, Section 75(1) A and the First Schedule of the Election Act. It seeks the following orders: -

1. That this application be certified as extremely urgent and be heard exparte instance.

2. That this court be pleased to order for review of Court order dated 5th September, 2017, interms of prayers, 3, 5 and 6 o f the Application dated 4th of September 2017.

3. That the Deputy Registrar / Judge do correct the errors apparent on the face of record.

4. That the upon review of the orders, the same be set aside and annulled.

5. That the petition herein be set for hearing to set the process on motion without prejudice pursuant to article 159 of the Constitution.

6. That costs of this application be provided for.

6. It is premised on 16 grounds appearing on its body. The original first Respondent who is the Applicant in this application, Boaz Awiti Okoth, (hereinafter referred to as ‘the first Applicant’) deponed that he filed the first application on the advice of his Counsel that there are good grounds to sustain the application since the Petitioner/Respondent did not fully disclose material facts to the Court to wit that by the time the Petitioner filed the Petition he, the first Applicant, had already been elected as and assumed the functions of the Office of the Speaker.

7. The first Applicant annexed a copy of the Hansard of the County Assembly of Migori County and demonstrated how the elections of the Speaker had been conducted. He deponed that the position of the Speaker attracted 11 duly qualified aspirants who included the first Applicant and the Petitioner herein. However, one of the aspirants withdrew from participating in the elections at the very last minute. That, as the elections were conducted in the main County Assembly Chamber the aspirants were waiting in the Speaker’s Board Room. He then reliably learnt that there was no clear winner in the first round of the elections as no one garnered the mandatory two-thirds or 75% of the votes as per Standing Order No. 7 of the Standing Orders of the County Assembly of Migori which were adopted by the County Assembly of Migori on 15/05/2014 during the first session of the First Assembly pursuant to Article 124 of the Constitution and Section 14 of the County Governments Act. (I shall henceforth refer to the Standing Orders of the County Assembly of Migori County to as ‘the Standing Orders’ and the County Assembly of Migori County as ‘the Assembly’). That during the first round of the elections he garnered 21 votes whereas the Petitioner garnered 25 votes, and two other aspirants garnered 8 votes and 1 vote respectively. The other aspirants did not get any single vote.

8. The first Applicant further deponed that when the second round of the elections was called and before the completion of the exercise there was some commotion in the Assembly Chamber because of lobbying by the members amid claims that the Members of the Assembly were suspiciously and systematically moving out of the Chamber. That, there was a slight disruption of the exercise that led to the adjournment of the House business but since there was adequate security the House business shortly resumed and the exercise continued. That, the final result was that he garnered 30 votes against the Petitioner’s 5 votes and he was declared as the duly elected Speaker of the Assembly.

9. The first Applicant further deponed that no incident of chaos was ever reported to the police or elsewhere and that the allegation that the Assembly was invaded by of goons was a lie. Apart from the Members of the County Assembly there were members of the public who attended to witness the exercise and as per the Constitution. The first Applicant was then dressed in the official Speaker’s robe, took an Oath of Office of the Speaker of the Assembly and gave his acceptance speech. He annexed copies of the oath and the Speech as exhibits. He deponed that he later conducted official business of the House and subsequently adjourned the Assembly sittings sine die.

10. On the effect of the interim orders, the first Applicant deponed that the entire administrative operations of the Assembly and the County Government of Migori County are by now paralyzed as no budgets can be approved as well as the approval of those elected by the Governor of the Migori County as County Executive Committee Members.

11. It was further deponed by the first Applicant that the provisions of Article 178(2)(b) of the Constitution only applies where there was a duly elected Speaker and/or a Deputy Speaker and that the interim orders in place further contravenes Article 47 of the Constitution and the Elections Act. The first Applicant further deponed that the Petitioner created a fallacy which misled the Court and that unless the interim orders are granted the entire Petition will only be for academic purposes. The Court was also urged to consider the doctrine of balance of convenience and allow the duly elected Speaker discharge his mandate.

12. By way of a Further Affidavit the first Applicant vehemently refuted the allegation of chaos and contended that there was no evidence in support thereof and that in any case disruptions in the business of the House is a normal occurrence and not a deliberate move as alleged. He also deponed that the Clerk of the Assembly only deals with clerical work including conducting the election and swearing of the Speaker but cannot discharge any of the duties of a Speaker but the Speaker alone. He reiterated his prayer for the discharge of the interim orders.

The Second Application: -

13. The second application is also brought by way of a Notice of Motion under Article 178 of the Constitution, Sections 1A, 1B and 3Aof the Civil Procedure Act, Section 75(1) A and the First Schedule of the Election Act and all other enabling provisions of the law. It seeks the following orders: -

1. That this application be certified as urgent and service be dispensed with in the first instance.

2. That pending inter parte hearing and determination of this application, this Honorable Court be pleased to vacate, lift and/or set aside its interim orders of 5th September, 2017.

3. That this Honourable Court be pleased to vacate lift and/or set aside its interim orders granted on the 5th September, 2017.

4. That the costs of this application be provided for.

14. The application is premised on 15 grounds appearing on its body. The original second Respondent through one Tom Opere Onyango who described himself as the Clerk of the Assembly, (hereinafter referred to as ‘the second Applicant’) deponed that the position of the Speaker of the Assembly attracted several candidates upon gazettement on 19/08/2017 who submitted their respective nomination papers pursuant to the Assembly Standing Order No. 5. That, only 11 of the candidates were shortlisted for the elections which were to be held on 31/08/2017. The second Applicant recalls that on the said date the first order of business was to table names of the gazetted members of the Assembly pursuant to Standing Order No. 3(1)(b) and he thereafter administered the oath or affirmation of office of 57 members pursuant to Standing Order No. 3(1)(c) and the Third Schedule of the Constitution.

15. The second Applicant then ventured into the business of the election of the Speaker. He informed the House that one of the 11 shortlisted candidates had withdrew from the race but the remaining 10 were ready to proceed on with the elections. That, the candidates were not in the House but their agents who were some of the elected members were present. That, he presided over the election which was by way of a secret ballot but none of the candidates garnered the 2/3 votes threshold of the 56 members who voted to be declared the winner in the first round pursuant to Standing Order No. 5 as read with the First Schedule of the Elections Act. That, the Petitioner garnered 25 votes while the first Applicant garnered 21 votes.

16. The second Applicant deponed further that the members proceeded for a further ballot and just as the counting began, the Chamber was disrupted by members of the public who stormed the Chamber and destroyed the cast votes and materials citing bribery of some members of the Assembly thereby compromising the election. He further annexed a copy of the Hansard countering the averments by the Petitioner and the other two members of the Assembly who had sworn affidavits in support of the petition and contended that the Petitioner and the other members jointly and deliberately concealed material information, misrepresented facts and were untruthful to this Court.

17. It was further deponed by the second Applicant that the election of the Speaker resumed later in the day pursuant to Standing Order No. 5(6) where the first Applicant garnered 30 votes while the Petitioner garnered 5 votes and the first Applicant was subsequently declared the winner and took oath of office.

18. On the filing of the Petition and the application dated 04/09/2017, the second Applicant deponed that this Court granted ex parte orders restraining the first Applicant from acting as a Speaker of the Assembly pending the hearing and determination of the Petition dated 04/09/2017 without a return date and further injuncted him from advertising for election of a Speaker or conducting elections of a Speaker as well as from forwarding the first Applicant’s name for gazettement as the elected Speaker of the Assembly pending the determination of the application dated 04/09/2017. He further contended that the permanent ex parte orders resulted in gagging the Assembly from discharging its devolved functions and mandate thereby paralyzing the County Government of Migori as the Assembly cannot approve budgets and expenditures of the County Government or any other contemplated legislation.

19. It was further deponed that the ex parte orders were obtained through non-disclosure of material facts, misrepresentation and deceit by the Petitioner pertaining to the election of the Speaker. He deponed that he was advised by his Counsel which advise he believed to be true that after a general election and before the House proceeds with any other business the House cannot transact any business without the election, declaration and gazettement of a new Speaker and that since the membership of the Assembly includes the Speaker then the Assembly is not properly constituted without a Speaker and cannot discharge its functions and that the Office of the Speaker cannot remain vacant indefinitely.

20. The second Applicant further deponed that the Court in upholding the doctrine of separation of powers must show deference to the independence of the legislature as an important institution in the maintenance of our constitutional democracy. He further deponed that this Court has no jurisdiction in this matter as the same ought to be handled by the Magistracy and called upon this Court to take note that the election of the Speaker of the Assembly had not been challenged in any other court of competent jurisdiction by the Petitioner hence orders should not be issued in vain. He prayed that the orders sought be granted.

The Petitioner’s response: -

21. The Petitioner in opposition to the two applications filed Grounds of Opposition dated 12/09/2017 together with a Replying Affidavit he swore on 18/09/2017. He deponed that the Hansard is not a true reflection of what transpired in the House since the counting had taken place and he was a clear winner with 31 votes against 25 garnered by the first Applicant before the goons were allowed into the Chamber in the face of all the security officers including the OCS Migori Police Station and the Migori Divisional Criminal Investigation Officer. That, as a result there was no need to arbitrarily conduct a fresh election but to declare him the winner but the converse was done just to steal a match after the goons had chased away the members who were in his favour. That, the whole episode was a carefully pre-planned scheme by the Applicants to block him from being sworn in as the Speaker after they realized that he had won by a majority vote.

22. It was also deponed by the Petitioner that further to the administrative duties which can be carried out by the second Applicant under Standing Order No. 3(5), Article 178(2) of the Constitution gives room to any member of the Assembly to act as a Speaker in the absence of a duly elected Speaker and as such the allegations that the operations of the Assembly and the County Government of Migori have been crippled are untrue. He further contended that the orders in force are not ex parte orders as alleged but were granted after the then Applicants’ Counsel was heard. The Petitioner prayed that the applications which are misconceived, incompetent and otherwise an abuse of the process of the Court be dismissed with costs.

The first Applicant’s submissions: -

23. The parties herein filed written submissions and highlighted on the same. Mr. Agure Odera Learned Counsel appeared for the first Applicant while Mr. Sagana Learned Counsel appeared for the second Applicant and Mr. Bosire Learned Counsel appeared for the Petitioner. The first Applicant submitted on several issues in support of his application. First, is the issue of the jurisdiction of this Court. He contended that the dispute on the election of the Speaker was to be heard by a Magistrate pursuant to Article 162(4) as read with Article 165(5)(b) of the Constitution. Second, it was submitted that there is an error on the face of the record as this Court wrongly interpreted Article 178(2)(b) of the Constitutionwhich was to be read alongside Articles 178(3) and 106(1)(a) of the Constitution, The First Schedule of the Elections Act and Standing Orders No. 5 and 6(6). It was the further submission of the first Applicant that Article 178(2)(b) of the Constitution only applies after a substantive Speaker is elected and not otherwise.

24. Third, it was submitted that pursuant to Standing Order No. 3(5) the second Applicant could not discharge the duties of the Speaker but only the Speaker. Fourth, that there was no evidence of the alleged violence in the Chamber or at all in terms of Sections 62, 63,64 and 65 of the Evidence Act. Fifth, the Court was urged to consider the balance of convenience, public interest, the doctrine of necessity and the doctrine of substitution and find that the interim orders ought to be varied to have the Assembly and the County Government of Migori legally operate for the greater public good. The first Applicant referred to the Court of Appeal decision of Kenya Power and Lighting Company Limited v. Benzene Holdings Limited t/a WYCO Paints (2016) eKLRin buttressing that this Court has the inherent powers to review and vary the interim orders.

The second Applicant’s submissions: -

25. The second Applicant raised four issues in its submissions. The first one is on the jurisdiction of this Court. It was submitted that since the matter before Court is a petition on the election of a Speaker who is an ex-offficio member of the Assembly by dint of Article 177 of the Constitution, then Section 75(1)(A), 75(4) and 80(3) as read with Section 2 of the Elections Act vests the jurisdiction to challenge the election of a Speaker on a magistrate and not the High Court. In buttressing the foregone the second Applicant referred to several judicial decisions including Mercy Kirito Mutegi vs. Beatrice Nkatha Nyaga & 2 Others (2013) e KLR, The Owners of the Motor Vessel ‘Lilian S’ vs. Caltex Oil (Kenya) Limited (1989) KLR 1, Jaldesa Tuke Dabelo vs. Independent Elewctoral & Boundaries Commission & Another (2015) eKLR, Sir Ali Bin Salim vs. Sharriff Mohammed Sharry (1938) KLR and that of Macharia & Another vs. Kenya Commercial Bank Ltd & 2 others (Supreme Court Civil Application No. 2 of 2011(unreported).

26. On Article 178(2)(b) of the Constitution, the second Applicant argued that the same would only come to play once a duly elected Speaker was absent and not before. The second Applicant further took issue with the way the Petitioner had brought the matter before this Court as a mix-up of a Constitutional Petition and at the same time an Election Petition. It was submitted if the matter is to be considered as a Constitutional Petition then the Magistrate has no jurisdiction and if the matter is an Election Petition then the High Court has no jurisdiction.

27. The second issue of submission was that the Petitioner failed to fully disclose material facts, misrepresented facts and was deceitful. That, the Petitioner was aware of what had transpired on the 31/08/2017 that led to the election of the first Applicant herein as the Speaker of the Assembly but he conveniently withheld such information from the Court and portrayed a completely different scenario that no one was ever elected as a Speaker of the Assembly, a fact he knew was false. The second Applicant urged the Court to refer to the Hansard for the correct position and shall confirm that the election of the Speaker was carried out in conformity with the First Schedule of the Elections Act and the Standing Orders. It was hence submitted that such orders must be set aside accordingly. The second Applicant referred to the decisions of GoTV Kenya Limited vs. Royal Media Services Limited & 2 others (2015) eKLR, Tate Access Floor vs. Boswell (1990) 3 All ER 303 and that of The King vs. The General Commissioners for the Purposes of Income Tax Acts for the District of Kensington ex parte Princess Edmond De Pligac (1917) 1 KB 486 in support of that submission.

28. It was further submitted that the second Applicant was condemned unheard contrary to Article 50(1) of the Constitution as the orders granted were final in nature as they had no return date. The fourth point was on public interest. It was submitted that it is in the wider interest of the public to allow the Assembly to discharge its constitutional mandate by lifting the orders in force since the work of the County Government of Migori as well had also been hindered as none of its Executive Members have been sworn in office to be able to take up their roles as such. The second Applicant urged this Court to allow its application with costs.

The Petitioner’s submissions in response: -

29. The Petitioner/Respondent submitted that none of the issues raised by the Applicants has demonstrated that the interim orders ought to be varied, set-aside or discharged. He denied that he was guilty of non-disclosure of material facts and contended that he fully disclosed what was in his knowledge. He also submitted that even in cases where there is non-disclosure of material facts the Court is enjoined to look at all the facts and if it forms an opinion that the orders ought to issue notwithstanding the non-disclosure the Court should not discharge the orders.

30. On the argument that the orders affect the operations of the Assembly as well as the County Government of Migori, the Petitioner submitted that the view was misconceived in law. He referred to Article 178(2) of the Constitution, Section 9(4) of the County Government Act, 2012, Section 21 of the Elections Act and Standing Order No. 3(5) in demonstrating that the operations of the Assembly are not in any way hampered by the absence of the Speaker.

31. On jurisdiction the Petitioner submitted that the High Court is vested with unlimited jurisdiction by virtue of Article 165(3)(a) of the Constitutionto deal with any matter before it. That, Section 75 of the Elections Act deals with the substantive matter but there exists a lacuna in the interim pending the designation of a Magistrate and that is where the High Court conveniently comes in handy.

32. The Petitioner further submitted that the applications are purely misconceived and an abuse of the process of the Court as the law is very clear of the aspect of a County Speaker and that the alleged inability of the Assembly to discharge its duties is only but imaginary. Further, that the then Counsel for the Applicants was present in Court and made submissions on why the orders ought not to be issued and as such any dissatisfaction should be challenged by way of an appeal but not a review. The Petitioner also took issue with the First Applicant’s Further Affidavit wherein it was deponed that there was no violence at all and wonder why the converse positions on the same matter.

The Applicants’ rejoinders: -

33. The first Applicant’s Counsel in a brief response to the Petitioner’s submissions submitted that the first application was merited as it demonstrated clear and deliberate non-disclosure on the part of the Petitioner who also contravened Sections 62 to 65 of the Evidence Act. It was also submitted that no one was legally allowed to take over the functions of a Speaker and that in the absence of a Speaker the Assembly cannot operate normally. On the aspect of the lacuna in law, the first Applicant submitted that when Article 165 of the Constitutionas read with Article 162 (4)of the Constitution it comes out clearly that the High Court has no jurisdiction in this matter. He contended that Article 50(1) of the Constitution was flouted as the first Applicant was yet to file any response in the matter.

34. Counsel for the second Applicant submitted that the Petitioner was duly represented by an agent during the elections and since the agent was in the Chamber throughout there was no excuse for not making full disclosure of material facts. That, had the Court been informed that a Speaker had been elected and assumed office the orders were unlikely to have been issued. The Court then did not have the benefit of the other side of the matter before making the orders. It was further argued that there was no evidence that the Petitioner had filed a Petition in any Magistrates Court for which a Magistrate would be designated. The Court was also called to note that what is before Court does not seek to nullify the election of the Speaker and in any event the filing of a Petition does not amount to an automatic stay. The Court was urged to find that Article 177 of the Constitution is on the Speaker who is the head of the Assembly whereas the Speaker contemplated in Article 178(1) of the Constitution can only come in after the substantive Speaker has been elected. Resulting from that legal position, it was submitted that the operations of the Assembly now stand compromised. Counsel urged the Court to grant the orders sought.

Analysis and Determinations: -

35. I have keenly read and understood the contents of the two applications, the responses, the Grounds of Opposition as well as the parties' submissions and do hereby frame the issues for determination as follows: -

(a) Whether this Court has the jurisdiction over this matter;

(b) If the answer to (a) above is in the affirmative, whether the interim orders should be vacated on account of material non-disclosure of facts, breach of the rule of natural justice or in public interest;

(c) Way forward.

(a) On jurisdiction: -

36. The second Applicant has pleasantly laid down the correct legal guidance on jurisdiction in detail in his written submissions. Reference was made to several binding decisions and I have no doubt that the issue of jurisdiction is so central and determinative. As an addition thereto, I wish to fully associate myself with the holding of 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…’

37. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in the case of 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.”

38. The Court of Appeal more recently in the case of Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 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.”

39. 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.

40. The Speaker of a County Assembly is an institution which is variously provided for in the Constitution and other laws. Article 177 of the Constitution 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 filing of special seats under clause (1) (b) shall be determined after declaration of elected members from each ward.

(4) A county assembly is elected for a term of five years.

41. Article 178 of the Constitution further provides as follows: -

‘(1) Each county assembly shall have a speaker elected by the county assembly from among persons who are not members of the assembly.

(2) A sitting of the county assembly shall be presided over by –

(a) the speaker of the assembly; or

(b) in the absence of the speaker, another member of the assembly elected by the assembly.

(3) Parliament shall enact legislation providing for the election and removal from office of speaker of the county assemblies.

42. The legislation contemplated under Article 178 (3) of the Constitution are the now County Governments Act No. 17 of 2012 (hereinafter referred to as ‘the CGA’) and the Elections Act (hereinafter referred to as‘the Act’). Under Section 2 of the CGA, a Speaker is defined as: -

‘the speaker of a county assembly elected under Article 178 of the Constitution.’

43. The Standing Order 2(c)likewise provides that: -

‘(c) ‘reference to the Speaker includes THE DEPUTY SPEAKER OR any other Member when presiding over the County Assembly pursuant to Article 178(2) of the Constitution.’

44. According to the Constitution the Speaker of any County Assembly is an ex officio member of that Assembly. Since the Constitution clearly used the word ‘ex officio’ before the Speaker, that connotes a significant meaning and it is the reason why I will endeavor to ascertain whether the Speaker, as an ex officio member of the Assembly, stands on the same footing as the other Members of the Assembly to regard any challenge into the election of the Speaker as an election petition contemplated under Section 75(1A) of the Act which section provides that: -

‘A question as to the validity of the election of a member of county assembly shall be heard and determined by the Resident’s Magistrate’s Court designated by the Chief Justice.’

45. In answer to the above I will consider the following aspects: -

(i)How the Speaker joins the Assembly: -

46. Under Article 178 (1) of the Constitution the Speaker is elected from persons who qualify to be but are not members of the Assembly. It is only after that election into the Assembly that the Speaker assumes the ex officio membership and becomes the head of that legislative arm of the County Government. Unlike the other members of the Assembly the election of the Speaker is not subjected to the rigorous election processes based on universal suffrage under Article 38 of the Constitution. It is therefore an election sui generis. The election is instead governed by an internal process in the Assembly whose procedure is provided for under Section 21 of the Act and the First Schedule thereto together with the Standing Orders. The process however must be in line with Article 196 of the Constitutionwhich calls for inter alia public participation in the affairs of the Assembly. For clarity purposes Section 21(1)and (2) of the Act provides as follows: -

(1) The Speaker of a county assembly shall be elected by each county assembly in accordance with the Standing Orders of the county assembly, from among persons who are qualified to be elected as members of a county assembly but are not such members.

(2) For purposes of the election of the speaker of the county assembly after the first election under the Constitution, the procedure set out in the First Schedule shall apply.”

47. Further, upon the tallying and announcement of the Speaker-elect by the Clerk the Speaker-elect takes the Oath or Affirmation of Office and immediately assumes the substantive position of the Speaker of the Assembly and proceeds to conduct the business of the Assembly including adjourning the sitting of the Assembly. In this case Standing Orders 12 and 13 clearly provide as such a position. The copy of the Assembly Hansard on record likewise confirms that position. There is therefore no legal requirement for the Clerk to officially ‘declare’ the results of the election of the Speaker at the end of the election exercise. What the Clerk is called upon to do is to ‘announce’ the winner of the election who is then called upon to assume office. There is equally no legal requirement for the Clerk to publish the name of the Speaker-elect in the County Gazette or Kenya Gazette before the Speaker-elect assumes the Office of the Speaker.

48. The converse however is a must for not only the Members of the Assembly elected in a General election but for all persons taking part in a General election or a by-election and at all levels. Section 39(1), (1A)and(1B) of the Act and provides as follows: -

’39. (1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.

(1A) The Commission shall appoint constituency returning officers to be responsible for –

(i) tallying, announcement and declaration, in the prescribed form, of the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;

(ii) collating and announcing the results from each polling station in the constituency for the election of the President, county Governor, Senator and county women representative to the National Assembly; and

(1B) The Commission shall appoint county returning officers to be responsible for tallying, announcement and declaration, in the prescribed form, of final results from constituencies in the county for purposes of the election of the county Governor, Senator and county women representative to the National Assembly.

(emphasis added)

49. From the reading of the above provision of the law at least three distinct activities must be carried out at the end of voting by the Commission. They are the tallying of the votes, the announcement of the votes garnered by each candidate and who the winner of that election is and lastly the declaration of the results of that election. The declaration usually takes the form of the issuance of the Certificate to the winning candidate by the relevant returning officer and immediately time starts running for any challenge to that election (See the Supreme Court of Kenya decision in Petition No. 10 of 2013 Hassan Ali Joho & Another vs. Suleiman Said Shahbal & 2 Others).

50. A declaration of the result of an election is therefore different from the tallying and announcement thereof and as stated above the election of a Speaker does not call for a declaration but only the tallying of the votes and the announcement of the winner of that election.

(ii) The removal of the Speaker: -

51. There is reference to the removal of the Speaker under Article 178(3) of the Constitution. As I have already stated above Parliament enacted the Act and CGA in respect to the election and the removal of the Speakers of County Assemblies. Section 11 of the CGAprovides for the removal of the Speaker in the following terms: -

‘(1) A Speaker of a county assembly may be removed from office by the county assembly through a resolution supported by not less than seventy five percent of all the members of the County assembly.

(2) A notice of the intention to move a motion for a resolution to remove the speaker shall be given in writing to the clerk of the county assembly, signed by at least one third of all members of the county assembly stating the grounds for removal.

(3) A motion for a resolution to remove the speaker shall be presided over by a member of the county assembly elected under section 9 (4).

(4) Before the debate and voting on a motion under subsection (3), the speaker shall be accorded an opportunity to respond to the allegations on the floor of the county assembly.

52. Section 21(5) of the Acthas the following provisions on how the office of the Speaker becomes vacant: -

“(a) when a new county assembly first meets after an election;

(b) if the office holder vacates office

(c) if the county assembly resolves to remove the office holderby a resolution supported by the votes of at least two – thirds of its members;

(d) if the office holder resigns from office in a letter addressed to the county assembly;

( e) where the office holder violates the Constitution;

(f) in the case of gross misconduct on the part of the office holder;

(g) where the office holder is incapable, owing to physical or mental infirmity, to perform the functions of the office;

(h) where the office holder is bankrupt;

(i) Where the office holder is sentenced to a term of imprisonment of six months or more; or

(j) if the officer holder dies.”

53. When it comes to the removal of the other members of the Assembly (not the Speaker) Article 194 of the Constitution provides as follows: -

‘(1) The office of a member of a county assembly becomes vacant-

(a) if the member dies;

(b) if the member is absent from eight sittings of the assembly without permission, in writing of the speaker of the assembly, and is unable to offer satisfactory explanation for the absence;

(c) if the member is removed from officer under this Constitution or legislation enacted under Article 80;

(d) if the member resigns in writing addressed to the speaker of the assembly;

(e ) if, having been elected to the assembly-

(i) as a member of a political party, the member resigns from the party, or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or

(ii) as an independent candidate, the member joins a political party;

(f) at the end of the term of the assembly; or

(g) if the member becomes disqualified for election on grounds specified in Article 193 (2)

(2) Parliament shall enact legislation providing for the circumstances under which a member of apolitical party shall be deemed, for the purposes of clause (1) (e), to have resigned from the party.”

54. There is therefore marked difference on the procedure and grounds for the removal of the Speaker on one hand and the removal of the other members of the Assembly on the other hand. Whereas a Speaker can be removed from office by a resolution of the Assembly and that will effectively mark the end of the tenure of that Speaker unless legally challenged, that is not the case with the other Members of the Assembly.

iii) Other distinct aspects: -

55. There are other equally distinct and important aspects worth consideration. For instance the requirement upon the conclusion of an election petition for an election court, pursuant to Section 86 of the Act,to determine the validity of any question raised in the petition and to certify its determination to the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the Commission’) and under Section 87 of the Act that court must make determination on whether an electoral malpractice of a criminal nature may have been occurred and if such a malpractice is found to have been occurred the matter is transmitted to the Director of Public Prosecutions for investigations. Such provisions do not apply whenever an election of a Speaker is challenged.

56. Further to what has been demonstrated above there is no requirement in law that a petition questioning the validity of a Speaker must be filed within 28 days after the declaration of the results of the election since the results of an election of a Speaker are never legally declared. Now if it is to be held that the election of a Speaker is to be challenged in the same manner as the election of the other members of the Assembly the question which begs an answer is this: When will a petition challenging the election of a Speaker be filed? On the other hand, Section 76(1)(a) of the Act provides that a petition challenging the validity of an election (including that of a Member of an Assembly) must be filed within 28 days of the declaration of the results and be served in accordance with Rule 12 of The Election (Parliamentary and County) Rules, 2017(hereinafter referred to as ‘the Rules’) and responses be filed in accordance with Rule 13 of the Rules. It is of essence to take note of the finding of the Supreme Court of Kenya in the case of Lemankan Aramat v. Harun Meitamei Lempaka & 2 others Supreme Court Petition No. 5 of 2014 where it was held that any petition filed outside the period of 28 days after declaration of the results is a nullity and a non-starter.

57. There is also the provision of Rule 10 of the Rules to the effect that the Commission must be a party in every petition filed under the Rules and that the Commission must be served with the petition as provided for under the Rules. The said Rule is in recognition of the central role played by the Commission in organizing and conducting the Presidential, Parliamentary and County elections. In the case of a Speaker the Commission does not take any part and does not feature anywhere in organizing and conducting that election. It is for that reason that the Commission is neither a party to nor is to be served with a petition challenging the election of a Speaker.

58. Another equally important distinction is the requirement for deposit of the security for the payment of costs of Kshs. 100,000/= in petitions relating to Members of County Assemblies. Section 78(1), (2)(c), (3), (4) and (5) of the Act provides as follows: -

‘(1) A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this Part,

(2) A person who presents a petition to challenge an election shall deposit-

(a) one million shillings, in the case of a petition against a presidential candidate;

(b) five hundred thousand shillings, in the case of a petition against a member of Parliament or a county governor; or

(c) one hundred thousand shillings, in the case of a petition against a member of a county assembly.

(3) Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and the payment of the respondent’s costs.

(4) The costs of hearing and deciding an application under subsection (3) shall be paid as ordered by the election court, or if no order is made, shall form part of the general costs of the petition.

(5) An election court that releases the security for cots deposited under this section shall release the security after hearing all the parties before the release of the security.”

(emphasis added)

59. Rule 11 of the Rulesalso provides as follows: -

(1) Within ten days of the filing of a petition under these Rules, a petitioner shall deposit security for the payment of costs that may become payable by the petitioner as provided under sections 78 (2) (b) and 78 (2) (c) of the Act.

(2) The security of costs under sub-rule (1) shall

(a) be paid to the Registrar

(b) be for payment of costs, charges and expenses payable by the petitioner; and

(c) be vested in, and drawn upon from time to time by, the registrar for the purposes for which security is required by these Rules.

(3) The Registrar shall –

(a) issue a receipt for any such deposit;

(b) shall file the duplicate of the receipt in a record kept by him; and

(c) keep the record, open for inspection by any party concerned, in which shall be entered from time to time the amount and the petition to which it relates.

60. When it comes to a petition challenging the election of a Speaker the above mandatory requirement is not provided for.

61. I have also found an excerpt from the decision in Republic vs. Transitional Authority & Another ex parte Crispus Fwamba & 4 Others (2013) eKLR where Justice Korir, W. referred to a scholarly work by P.D. T. Achary on the book Bharat’s Law of Elections, 1st Edition, Bharat Law House, 2004 to be persuasive and useful. The learned Judge stated as follows: -

“The procedure for removal of a speaker of a county assembly as captured by Section 21(5) of the Elections Act compares well with the laws of other Commonwealth jurisdictions. Writing on election laws in India, P. D. T. Achary at page 207 of BHARAT’S LAW OF ELECTIONS, 1st Edition, Bharat Law House, 2004 observed that a speaker or deputy speaker could only vacate office as follows: -

‘A member holding office as Speaker or Deputy Speaker of the House of the People-

(a) shall vacate his office if he ceases to be a member of the House of the People;

(b) may at any time, by writing under his hand addressed, if such member is the Speaker, to the deputy Speaker, and if such member is the Deputy Speaker, to the Speaker resign in his office; and

(c ) may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House:

Provided that no resolution for the purpose of clauses (c) shall be moved unless at least fourteen days’ notice has been given of the intention to move the resolution:

Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution.”

Nowhere is the removal of a Speaker by way of an election petition mentioned in the said book.”

62. The Constitution in Article 251(1) also tends to shade more light to the fact that a Member of a Constitutional Commission is different from an ex-officio member of that Commission. The Article makes a distinction on the removal of a Member and an ex-officio member of the Commission. The Article states as follows: -

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

(emphasis added).

63. The Supreme Court of Kennya has also had an opportunity to consider the types of elections and the resultant election petitions under the Constitution and the law. In the case of Moses Mwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5 Others (2016) eKLR, the Court in addressing the question as to whether a Member nominated to a County Assembly through the process of a party list is an equal Member to the one elected at a General Election and whether such a challenge should be by way of an election petition or otherwise, after a detailed consideration of the matter had the following to say: -

‘[117] It is clear to us that the Constitution provides for two modes of ‘election’. The first is the 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.’

64. It is worth pointing out that the Supreme Court considered the Constitution and the law and it was satisfied that the supreme law of the land provides for only two types of elections which can only be challenged by way of election petitions under the Act. The Court remained alive to the provisions of Articles 97, 98 and 177 of the Constitution which provides for the Speakers of the National Assembly, the Senate and the County Assemblies as ex-officio Members of those Houses and to the respective Standing Orders of the Houses which provided for the elections of Speakers into office but clearly found the election of such Speakers not to fall within the two categories of elections recognized under the Constitution and the law. It therefore means that challenging the election of a Speaker is not the same as challenging an election resulting from a General election, a by-election or through nomination by way of a party list.

65. The foregone discourse makes it conspicuously clear that a Speaker, as an ex-officio member, of an Assembly does not occupy the same status as the other Members of the Assembly. Whereas the Speaker can be said to be engaged by the Assembly that cannot be said of the other Members of the Assembly who are the direct choice of the people. That is the very reason why even the way the election of a Speaker is challenged must be different from that of any other Member of the Assembly. The election petitions contemplated under the Act and the Rulesdo not therefore include any legal challenges to an election of a Speaker of a County Assembly. I find it a misconception of the law to treat a petition challenging the election of the Speaker of a County Assembly as an election petition contemplated under the Actand the Rules.

66. In conclusion, the finding of the Court in the case of Frank Musila Maloka v. Felix G. Mbiuki & 4 others (2013) eKLR seems to sum it all and indeed very well that: -

’50. The Petitioner’s rights under Article 38 must be adjudicated in the context of the doctrine of separation of powers and the constitutional and legislative provisions that govern the organization of the county assembly which I have set out above. In this respect I agree with Mr. Kilukumi that the election of a Speaker is an election sui generis. A plain reading of Article 38 as read with Articles 178 and 196, the County Government Act, the Elections Act, 2011 and the Standing Orders do not envisage the election of the Speaker as one based on universal suffrage; it is an internal election for Speaker governed by special rules contained in the First Schedule to the Elections Act, 2011 and the Standing Orders which are all underpinned by statutory and constitutional provisions I have cited. The County Assembly, as a legislative assembly, is entitled to regulate its own proceedings including the election of the Speaker.’ Does the High Court therefore have the jurisdiction to determine any challenge to the election of a Speaker of a County Assembly?

67. The jurisdiction of the High Court is provided for in 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.

(emphasis added).

68. Therefore, the answer to the above question should be arrived at by a close look at the jurisdiction of the High Court as provided for in the Constitution as well as the nature of the matter and the doctrine of the separation of powers. The Court should also be guided by the provisions of Article 259(1) of the Constitution. The foregone was aptly captured in the case of Frank Musila Maloka v. Felix G. Mbiuki & 4 others (supra) as follows: -

’41. Before I proceed to consider the petitioner’s case, it is important to recall some of the principles that guide the Court in exercising jurisdiction. The Court is enjoined to be guided by the provisions of Article 259(1) which provides that the Constitution shall be interpreted in a manner that promotes its purpose, values and principles, advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights and permits development of the law and contributes to good governance. Apart from adopting the purposive approach demanded by Article 259(1), the Court in considering constitutional provisions must give effect to the Constitution as a whole. The various provisions that deal with political rights must be read together in a manner that gives full effect to the purposes and provisions of the Constitution. In this respect I fully adopt the dictum stated in Centre for Rights Education and Awareness (CREAW) AND Others v Attorney General Nairobi Petition No. 16 of 2011 (unreported) where the Court, quoting other decisions, stated that, “In interpreting the Constitution, the letter and the spirit of thesupreme law must be respected. Various provisions of the Constitution must be read together for a proper interpretation.”(See also Tinyefuza v Attorney General of Uganda Constitutional Appeal No. 1 of 1997 (unreported), Ndyanabo vs. Attorney General of Tanzania [2001] 2 EA 485, and Olum v Attorney General of Uganda (20020 2 EA 508).

42. In applying these principles, it must also be borne in mind that political rights set out in Article 38 do not exist in isolation. The rights underpin a whole ecosystem that is the electoral process and the manner in which the sovereign authority of the people is exercised through Parliament and legislative assemblies in county government. These provisions are part of the Constitutional and cannot be read apart from it. In Dr. Calvin Kadongo and Others v Transition Authority and Others Nairobi Petition No. 174 of 2013 (unreported) I opined that,“[12] [F] fundamental rights and freedoms do not exist in isolation, they are part of the Constitution and must be realised within the framework set by the Constitution. It is a cardinal principle of interpretation of the Constitution that it must be read as a whole and in this respect the provisions regarding the electoral and election process cannot be isolated and sacrificed at the altar of absolute individual rights and fundamental freedoms. The fundamental right s and freedoms guaranteed under the Bill of Rights are also given effect and realised with the framework of governance. [13] Chapter Seven and Eight of the Constitution titled “Representation of the People” and “The Legislature” respectively give effect to the principle of sovereignty of the people articulated in the Preamble and Article 1. These provisions are underpinned by various fundamental rights and freedoms, which include political rights guaranteed under Article 38, which are given effect by provisions dealing with elections.”This reasoning applies with equal force when dealing with devolved government and in dealing with the petitioner’s grievance, it is therefore imperative to revisit the constitutional and statutory provisions relating to the election of the Speaker cited by the parties.

49. What is not in doubt is that unconstitutional exercise of executive or legislative power cannot be shielded from judicial scrutiny by reason of respect of the doctrine of separation of power or in the name of parliamentary immunity or privilege. Article 1 provides that all sovereign power belongs to the people to be exercised only in accordance with the Constitutional and further delegates the sovereign power to various state organs among them Parliament and the legislative assemblies in the county governments. Article 1 (3) is clear that the state organs upon which such power is to be delegated “Shall perform their functions in accordance with [the] Constitution.” The Constitution is Supreme and is binding upon all persons and all State organs at both levels of government. Accordingly, no person or state organ is above the Constitution and their actions are amenable to the Constitution. Article 3 places an obligation on every person to respect, uphold and defend the Constitution while Article 10 enjoins all state organs, state officers, public officers and all persons to abide by the national values and principles. The ultimate arbiter of the core principles is the judicial branch. In Republic v Independent Electoral & Boundaries Commission and others ex-parte Cllr Elliot Lidubwi Kihusa an others Nairobi HC JR MIS APP No. 94 of 2012, where it was stated that,“The primary duty of courts is to the Constitution and the law, which they must apply impartially ad without fear, favour or prejudice. The Constitution requires the State to respect, protect, promote, and fulfill the rights in the Bill of Rights. Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes and intrusion into the domain of the executive, that is an intrusion mandated by the Constitutionitself.” (See also Minister of Health and Others v Treatment Action Campaign and Others (2002) 5 LRC 216, 248, Doctors for Life International v Speaker of the National Assembly and Others (supra)).

69. The Supreme Court of Kenya in addressing the issue of separation of powers in the case of In the Matter of Interim Independent Commission, Constitutional Application No. 2 of 2011expressed itself as follows: -

“The effect of the Constitution’s detailed provision for the rule of law in processes of governance, is the legality of executive or administrative actions to be determined by the Courts, which are independent of the Executive branch. The essence of separation of powers, in this context, is that the totality of governance powers is shared out among different organs of government, and that these organs play mutually – countervailing roles. In this set up, it is to be recognized that none of the several government organs functions in splendid isolation.”

70. It was further held in the case of Trusted Society of Human Rights Alliance vs. Attorney General Nairobi Petition No. 290 of 2012 (supra) that: -

‘The Constitution consciously delegates the sovereign power under it to the three branches of government and expects that each will carry out those functions assigned to it without interference from the other two… this must mean that the Courts must show deference to the independence of the Legislature as an important institution in the maintenance of our constitutional democracy as well as accord the Executive sufficient latitude to implement legislative intent. Yet … the courts have an interpretive role - including the last word in determining the constitutionality of all governmental actions. That, too, is an incidence of the doctrine of separation of powers.” In Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006) ZACC11, in examining the extent of court’s intervention in the legislative process, the South African Constitutional Court had this to say“[70] What courts should strive to achieve is the appropriate balance between their role as the ultimate guardians of the Constitution and the rule of law including any obligation that Parliament is required to fulfill in respect of the passage of laws, on the one hand, and the respect which they are required to accord to other branches of government as required by the principle of separation of powers, on the other hand.”

71. In a more closely related matter, the High Court comprised of Nyamu, J (as he then was), Wendoh and Dulu, JJ in the case of Peter O. Ngoge vs. Francis ole Kaparo (2007) eKLR when dealing with a matter on the election of the Speaker of the National Assembly had the following to say: -

‘The invitation to the Court to intervene in the matter of the election of a Speaker which is clearly regulated by the Standing Orders and which is required to be the first item of the agenda of a new session would in itself be a clear breach of the Constitution in that it is not the function of this court to interfere with the internal arrangements of Parliament unless they violate the Constitution. The doctrine of separation of powers as regards the internal arrangements of parliament demands that we do not interfere with and such internal arrangement. The internal arrangements are those normally regulated by the Standing Orders of the House. There cannot therefore be a valid cause of action based on what would clearly be a violation of the Constitution by the court if it was to intervene. The declarations and order sought in this regard would be plainly in contravention of the Constitution. Moreover, it would result in the court interfering with the immunity granted to Parliament on such internal matters which have nothing to do with any violation of the Constitution. The powers, privileges and immunities of Parliament are provided for by the National assembly (Powers and Privileges and Immunities Act Cap 16 Laws of Kenya). Our view is that the court would only be entitled to intervene to uphold the provisions of the Constitution. An application which in substance invites the court to violate a constitutional provision or doctrine of separation of powers is itself an abuse of the court process, and is also incompetent and ought to be dealt with summarily.”

(emphasis added).

72. There has equally been judicial emphasis on the jurisdiction of the High Court to determine on inquiry the legality of any act done or said to have been done pursuant to the Constitution (See the cases of Clement Kung’u Waibara and Another v. Francis Kigo Njenga and Others (unreported), Jeanne W. Gacheche & 6 others v. Judges and Magistrate’s Vetting Board and others (unreported), Federation of Women Lawyers Kenya (FIDA-K) and others v. Attorney General and Another (2011) eKLR among many other such decisions).

73. The answer to the above question is therefore that the High Court has jurisdiction to inter alia interrogate any issues raised in a matter before it in so far as the issues are on a threat to or denial, violation, infringement of the fundamental rights and freedoms guaranteed in the Bill of Rights (Article 165(3)(b) of the Constitution). The procedure in bringing those issues for determination before the High Court need not to be stringent. It should not necessarily matter how a party approaches the Court if the issues in dispute are on the threat to or violation, denial, infringement of the fundamental rights and freedoms. A Court in such a case should endeavor to dispense substantive justice as opposed to being entangled with procedural technicalities (Article 159(2)(d)of the Constitution).

74. I now find that in a case where a party alleges a threat to or denial, violation or infringement of the fundamental rights and freedoms guaranteed in the Bill of Rights and depending on the desired remedies that party can file a Petition, a Judicial Review or any such matter in the High Court for determination. To me, in case one is challenging the election of a Speaker of a County Assembly, as in this case, titling such a Petition as an ‘Election Petition’ and not a ‘Constitutional Petition’ cannot render the petition a non-starter.

75. I have patiently perused the Petition filed on 04/09/2017 together with the Affidavits in support thereof. From their reading the Petitioner is challenging the election of the Speaker on several grounds including that there was an organized intrusion by hooligans into the Chamber during the time the process of electing the Speaker was underway which hooligans destroyed the election materials, held the Petitioner in hostage for about two hours until the Petitioner was rescued by members of public, that the Petitioner’s right to be elected as a Speaker was unfairly curtailed as he had actually won the election, that the Clerk did not follow the law on the election of the Speaker among others. The said complaints obviously and variously touch on the Bill of Rights including the right to equality before the law and freedom from discrimination (Article 27), Human dignity (Article 28), freedom and security of the person (Article 29), political rights (Article 38), fair administrative action (Article 47) among others.

76. The Petition before Court therefore raises issues of the denial, violation or infringement of the Petitioner’s fundamental rights and freedoms guaranteed in the Bill of Rights and as such it is an appropriate one to be handled by this Court. Needless to say, the Applicants/original Respondents are yet to file their respective responses to the Petition and the Petitioner further reserves the right to file further replies to the responses which will be filed by the Applicants as well as the right to apply to the Court to amend the Petition in case any need arises.

77. Based on the foregone analysis I now return the finding that this Court has the jurisdiction to deal with the Petition filed in this matter and that since the Petition herein is not among those contemplated under the Act and the Rules the requirement that the Honourable Chief Justice shall designate a Magistrate to deal with this kind of a Petition does not arise. As the Petition herein deals with the determination of questions as to whether a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, no Magistrate has jurisdiction over such a matter.

(b)On whether the interim orders should be vacated: -

78. Apart from the ground of jurisdiction the Applicants have also challenged the interim orders on other grounds which I will consider as under: -

(i) Non-Disclosure of material facts, misrepresentation and/or deceit: -

79. The main contention in this ground is that the Petitioner did not disclose to the Court that indeed the elections on the Speaker of the Assembly had proceeded on and that the first Applicant who was eventually elected as the Speaker was sworn into and assumed the office and conducted the rest of that day’s business in the Chamber including adjourning the Assembly’s sittings.

80. The Petitioner’s response was that he disclosed all what he then knew on the matter. The Petitioner seems to have disclosed the issue in contention. In paragraph 21 of his Affidavit in support of the Petition sworn on 04/09/2017 the Petitioner deponed as follows: -

’21. I have information which I believe to be true that subsequent to disrupting the proceedings and chasing away members of the county assembly, the 1st and 2nd respondent proceeded to illegally proclaim the 1st respondent the elected speaker of the Migori county assembly, the 2nd respondent further went ahead to unlawfully administer the speaker’s oath to the 1st respondent and all went to jubilation.’

81. Since the facts alleged not to have been brought out to the Court when the application for interim orders was initially heard were I do not see the need to deal with this issue further. The ground fails.

82. I however deem it fit to deal with an issue which came to my attention touching on this matter. One of my responsibilities as the Presiding Judge of the High Court within Migori County and in line with Article 165(6) and (7) of the Constitution is to exercise supervisory jurisdiction over the Magistracy within the Migori County. To that end, I was informed of the filing of two election petitions in the Senior Principal Magistrate’s Court at Kehancha. Election Petition No. 1 of 2017 was filed on 22/09/2017 by one Andrew Mwera Mwita against the Applicants in this matter. It is a petition challenging the election of the first Applicant as the Speaker of the Assembly. Election Petition No. 3 of 2017 was also filed on 22/09/2017 by one Moses Odongo Olala against the Applicants herein and one George Okinyi Omamba. Both petitions were filed by the firm of Messrs. Odhiambo & Company Advocates of Suna-Migori. Likewise, the Judiciary Committee on Elections was informed of the petitions.

83. Having only perused the said two petitions and without the benefit of the entire files, it has come to my knowledge that indeed the second Applicant herein presided over the election of the Deputy Speaker of the Assembly on 19/09/2017 where the said George Okinyi Omamba was elected as the Deputy Speaker. That is the election which is challenged in Election Petition No. 3 of 2017.

84. Be that as it may, the point I am making here is that the second Applicant was aware that he had indeed presided over the election of a Deputy Speaker of the Assembly on 19/09/2017 by the time the parties appeared for the hearing of the twin applications on 22/09/2017 before this Court. However, no such disclosure was made to the Court. Instead the second Applicant mounted an argument that a Deputy Speaker can only be elected once the substantive Speaker has been elected and since no substantive Speaker had been elected, and in the absence of a Deputy Speaker, the operations of the Assembly had been brought to a standstill. But I clearly see the reason behind the non-disclosure; Had the second Applicant so disclosed it would not have been possible for it to front its argument that the operations of the Assembly were crippled. In fact, it now turns out that it is the second Applicant who is guilty of non-disclosure of such material facts. Having said so I opt to leave that issue there since it was not dealt with by the parties during the hearing of the applications. The ground of non-disclosure of material facts, misrepresentation and deceit is hence unsuccessful.

(ii) Public interest: -

85. The issue of public interest was raised on two limbs. First that the interim orders had effectively crippled the operations of the Assembly and the County Government of Migori and second that the orders were issued ex parte and were final in nature. I will begin with the first limb. It was argued by the Applicants’ Counsels that the provisions of Article 178(2)(b) of the Constitution only applies in the absence of a duly elected substantive Speaker and not in any other instance. In this case and according to the record the elections of the Speaker were carried out albeit the disturbances and the first Applicant was duly elected as the Speaker of the Assembly.

86. According to the Hansard of the House proceedings of 31/08/2017 at page 13 ‘the counting of the votes cast in the second round of the election of the Speaker was interrupted at 02:27 pm by members of public who stormed the House and started shouting to members to get out of the Chamber thereby compromising the election’. That the sitting of the House resumed at 05:37pm and the election of the Speaker went on where the first Applicant was elected by a majority of 30 votes against the Petitioner’s 5 votes. The second Applicant then announced the first Applicant as the duly elected Speaker of the Assembly. The first Applicant was brought into the Chamber by the Sergeant-at-Arms and the second Applicant escorted the first Applicant to the Chair of the Speaker of the House where the second Applicant administered the Oath of Allegiance to the Speaker-elect and thereafter ‘the Speaker, Hon. Boaz Okoth Owiti, took the Chair, and the Mace, which before lay under the Table was placed upon the Table.’The Speaker then made his maiden communication from the Chair where he submitted himself ‘to the will of the House.’Thereafter, it was the Speaker who adjourned the House sine dieat 06:13 pm.

87. From those proceedings, the House adjourned on 31/08/2017 having elected a substantive Speaker who is the first Applicant. Having done so, even going by the argument by the Applicants, the provisions of Article 178(2)(b) of the Constitutionapplied thereafter. However, I subscribe to the position that the provisions of Article 178(2)(b) of the Constitutionapplies even in cases where no Speaker of the House has been elected in the first instance. I say so in view of the way Article 178(2)(b) of the Constitution is very clearly worded further to several other enabling provisions of the law. Section 9(4) of the CGAstates that ‘at any time in the absence of the Speaker of the county assembly or in matters that directly affect the speaker, the county assembly shall elect a member to act as speaker as contemplated under Article 178(2)(b) of the Constitution’. Section 9(5) of the CGAprovides that ‘unless otherwise removed, the first member elected under subsection (4), shall, in the absence of the Speaker, preside over the sittings of the assembly for the term of the county assembly.’Section 14(2) of the CGAprovides that the Assembly proceedings shall be valid despite there being a vacancy in its membership at a particular time or even in cases where there is the presence or participation of a person not entitled to be present at or to participate in the proceedings of the Assembly. Even in cases where the Speaker cannot discharge the duties of the Chairperson of the County Assembly Service Board Section 12(5)(c) of the CGA provides that the leader of majority party or the leader of the minority party in the House shall take over such duties of the Chairperson. The foregone is also the spirit behind the Standing Orders which are clearly worded.

88. The above position was echoed by my brother Kimondo, J. in a Judicial Review matter filed in the High Court challenging the suspension of the Speaker of the County Assembly of Baringo County in the case of Republic v. Clerk County Assembly of Baringo ex parte William Kamket (2015) eKLR where he stated that ‘…in the event of removal of the Speaker, there would be no vacuum; Article 178(2)(b) of the Constitution provides that in the absence of the county speaker, a sitting shall be presided over by any other elected member. A similar provision is found in Section 9(4) of the County Government Act and Standing Order 61 of the assembly…’.

89. The above position is even echoed by the second Applicant who presided over the election of the Deputy Speaker on 19/09/2017. The cumulative effect of Article 178(2)(b) of the Constitution as read with the other laws and the Standing Orders is that there is no time the proceedings of the Assembly shall be hampered by the absence of any member of the Assembly. Simply put, there can never be a vacuum or lacuna resulting from the absence of any member of the Assembly. I therefore do not find the argument by the Applicants that the operations of the Assembly and the County Government have been adversely affected by the orders in force to be a sound one. There was no evidence of such a scenario but only the submissions tendered in Court. But, even if such evidence is tendered still the position in law will not simply change unless the law is either amended or repealed. If the members of the Assembly fail to discharge their duties as required under the Constitution and the law on the pretext of the orders of this Court, then that will amount to abdicating their responsibilities and of course the Constitution and the law are not short of what follows next. The foregone analysis therefore renders the first limb of this ground without any legal leg to stand on.

90. The second limb is that the orders were granted ex parte and are in finality. I must first state that the orders in issue in this matter were not issued ex parte as alleged. When the Petition and the application were filed on 04/09/2017 the matter was placed before this Court and the Petitioner was directed to effect service of the application for consideration of the interim orders inter partes on 05/09/2017. When the matter came up before Court as scheduled all the parties were represented by Counsels who addressed the Court on whether interim orders ought to be issued in the first instance. Mr. Agure Odera who then appeared for the Respondents/now Applicants made submissions on why the orders ought not to be issued in the first instance. This Court considered the matter inter partes and vide its ruling delivered that day granted the interim orders.

91. On whether the orders were granted in finality, I must say that the orders were interim in nature and were pending the designation of the Magistrate to deal with the application further. The hand-written proceedings are very clear on that position. For clarity purposes this Court issued order (c) that ‘Once the Magistrate is duly designated in law that court shall deal with the Notice of Motion dated 04/09/2017 in accordance with the law’.I must however agree that there was a problem with the way the orders were eventually extracted. It may appear that the officer did not consider the totality of the orders issued but proceeded to lift the prayers in the application as the orders of the Court. To that end there is a clear error on the face of the record in that the extracted orders gave the impression that the interim orders were in finality. I therefore uphold the argument by the Applicants. Further, in view of the foregone discourse on jurisdiction the interim orders cannot still stand since the Magistracy has no jurisdiction over the matters raised in the Petition and the application.

(c) Way forward: -

92. As I come to the end of this ruling I wish to express my sincere and immense gratitude to all the Counsels who appeared in these proceedings for the well-researched submissions, both oral and written, and the authorities referred to which I have found truly useful. If I have not expressly referred to any authority cited, that it is not out of disrespect or lack of appreciation for their industry. I would also wish to apologize for the delay in the delivery of this ruling as I left the station for training on election matters in Nairobi and thereafter proceeded to Kitale and Bungoma High Courts where I am one of the designated Election Courts thereat.

93. Having addressed all the issues raised by the parties in the applications before this Court and now that this Court has the jurisdiction to deal with the matter and in view of the pendency of the like matters before the Senior Principal Magistrate’s Court at Kehancha, there is need for this Court to strike a balance and devise a way to ensure that the interests of all the parties are considered and the matter, due to its public interest, is expeditiously determined.

94. To that end and in the interest of fair play and justice the following orders hereby issue: -

(a) The orders of this Court issued on 05/09/2017 be and are hereby vacated and/or set-aside.

(b) The first Applicant, Boaz Awiti Okoth, is hereby restrained by an order of this Court, from discharging any of the functions of the Office of the Speaker of the County Assembly of Migori County pending the inter partes hearing of the Petitioner’s Notice of Motion dated 04/09/2017.

(c) The Deputy Registrar of this Court shall call for the Kehancha Senior Principal Magistrate’s Court Election Petition No. 1 of 2017 and Kehancha Senior Principal Magistrate’s Court Election Petition No. 3 of 2017 and place the matters before this Court for a consideration of the issues raised therein and for appropriate directions.

(d) This matter is now fixed for directions on the hearing of the Notice of Motion dated 04/09/2017 alongside the Kehancha Senior Principal Magistrate’s Court Election Petition No. 1 of 2017 and Kehancha Senior Principal Magistrate’s Court Election Petition No. 3 of 2017 on 12/10/2017.

(e) The Deputy Registrar shall serve the Counsels (or the parties as the case may be) appearing in the said Kehancha Senior Principal Magistrate’s Court Election Petition No. 1 of 2017 and Kehancha Senior Principal Magistrate’s Court Election Petition No. 3 of 2017 to attend Court on 12/10/2017.

(f) Since the two applications have only partly succeeded each party shall bear its own costs.

Those are the orders of this Court.

DELIVERED, DATED and SIGNED at MIGORI this 11th day of October 2017.

A. C. MRIMA

JUDGE

Ruling delivered before:

Mr. Bosire Counsel for the Respondent/original Petitioner.

Mr. Agure Odera Counsel for the first Applicant/Original first Respondent.

Mr. Sagana Counsel for the second Applicant/Original second Respondent

Evelyn Nyauke– Court Assistant