[2022] KEHC 15856 (KLR)

Ekai & another v Clerk of the County Assembly of Turkana; Nkulei (Interested Party) (Judicial Review Application E012 of 2022) [2022] KEHC 15856 (KLR) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15856 (KLR)

Republic of Kenya

In the High Court at Lodwar

Judicial Review Application E012 of 2022

JK Sergon, J

December 2, 2022

(Formerly Kakameg JR No E012 of 2022)

IN THE MATTER OF ARTICLE 193 OF THE CONSTITUION OF KENYA AND IN THE MATTER OF SECTIONS 19, 21, 25(2) AND (3), 43(5) AND 43(5A) OF THE ELECTIONS ACT, 2011 AND IN THE MATTER OF THE LAW REFORM ACT & ORDER 53 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF AN APPLICATION BY ABRAHAM LOSINYEN EKAI & DERRICK KOLI EPAE SEEKING LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF THE DECISION BY THE CLERK OF THE COUNTY ASSEMBLY OF TURKANA TO BAR THE APPLICANTS FROM CONTESTING FOR POSITON OF THE SPEAKER OF TURKANA COUNTY ASSEMBLY AND IN THE MATTER OF THE ELECTIONS OF SPEAKER OF COUNTY ASSEMBLY SCHEDULED FOR 20TH SEPTEMBER, 2022 AND IN THE MATTER THE DECLARATION OF CHRISTOPHER DOYE NAKULEI AS THE SPEAKER OF THE COUNTY ASSEMBLY OF TURKANA

BETWEEN LODWAR HIGH COURT JUDICIAL REVIEW APPLICATION NO. E012 OF 20221

Between

Abraham Losinyen Ekai

1st Applicant

Derrick Koli Epae

2nd Applicant

and

Clerk of the County Assembly of Turkana

Respondent

and

Christopher Doye Nakulei

Interested Party

Ruling

1. The subject matter of this ruling is the motion dated October 7, 2022 taken out by Abraham Losinyen Ekai and Derrick Koli Epae the 1st and 2nd applicants herein respectively. In the aforesaid motion, the applicants sought for the following orders:i.This notice of motion application be certified urgent and be heard at the earliest on account of its urgency;ii.An order of certiorari to remove to this honourable court for the purposes of being quashed, the decision of the respondent declining to clear the applicants as candidates for the position of the speaker on account that the applicants did not resign from public office within six months from the date election of speaker and the consequent declaration of the interested party as speaker of county assembly of Turkana made on September 20, 2022. iii.An order of mandamus to remove this honourable court for the purpose of compelling the respondent to shortlist the applicants as candidates for the position of speaker of the county assembly of Turkana ad conduct fresh elections for the position of the speaker of the county assembly of Turkana.iv.The costs of this application be awarded to the applicant.

2. The applicants filed the supporting the supporting affidavits and a supplementary affidavit both sworn by Abraham Losinyen Ekai in support of the motion.

3. When served with the aforesaid motion Lokawa L Miinyan, the clerk county assembly of Turkana the respondent herein, filed the replying affidavit he swore to oppose the motion. Christopher Doye Nakulei, did not deem it fit to file a response to the motion. When the application came up for hearing this court issued orders to have the same disposed of by written submissions.

4. I have considered the grounds set out on the face of the motion and on the statement of facts accompanying the summons for leave. I have also taken into account the facts deponed in the rival affidavits. I have further considered the written submissions plus the authorities submitted by both sides.

5. It is the submission of the applicants that the respondent failed to comply with the orders issued by the High Court sitting in Kakamega vide petition No E015 of 2022, Agava Makhumbiri v Clerk, County Assembly of Kakamega & 2 others.

6. It is the applicants’ averment that on September 19, 2022 the High Court at Kakamega issued orders directing all clerks of all the forty seven (47) counties in the Republic of Kenya to inter alia “unconditionally receive, accept and process in accordance with article 193 of the Constitution, applications from all persons qualified to contest the position of the county assembly speaker and shortlist them without imposing a condition that such persons must have resigned from public or state office at least six months before the date of nomination”.

7. The applicants further averred that the respondent was in the morning of September 20, 2022 served with the aforesaid order and that he duly acknowledged receipt. The 1st applicant further averred that he was shocked that despite being served with the court order, the respondent went ahead to disqualify him and the 2nd applicant on account of having not resigned as a state public officer as of February 9, 2022 and proceeded to declare the Interested party as the speaker unopposed of the county assembly of Turkana.

8. The applicants further argued that the respondent was contemptuous of valid court orders and that the respondent’s decision resulted to gross violation of the 1st applicant’s rights under article 38 of the Constitution as well as other members of the county assembly of Turkana who were deprived of an opportunity to elect a speaker from qualified candidates including him who had presented themselves for the said election.

9. They also pointed out that other counties complied with the court orders while the respondent blatantly refused to comply. In his supplementary affidavit, the 1st applicant supplied to this court a flash disk with video recording of the Turkana county assembly’s first sitting downloaded from youtube at http://www.youtube.com/watch?v=noqmjvibq in which the respondent is heard stating he was aware of the court order.

10. This court was urged by the applicants to find and hold that the respondent was aware of the court orders issued by the High Court sitting in Kakamega before the election of the speaker, county assembly, Turkana were conducted and that he chose to ignore those court orders.

11. In the replying affidavit, the respondent urged this court to find the applicants guilty of abusing the court process. The respondent pointed out that the applicants in addition to the instant proceedings have lodged two separate matters before the High Court at Lodwar and the High Court at Kakamega which are founded on a similar cause of action, principally to challenge the nomination and election of the speaker of the county assembly of Turkana.

12. The respondent stated that the first case to be filed is Lodwar HC constitutional petition No E002 of 2022 Derrick Epae Koli v The Clerk, Turkana County Assembly and another. It is also said that the applicants proceeded to lodge a separate matter at Kakamega High Court i.e Kakamega HC constitutional petition No 017 of 2022 Derrick Epae Koli and Abraham Losinyen v Clerk, Turkana County Assembly & another.

13. It is said that the matter was founded on a similar cause of action as Lodwar HC constitutional petition No E002 of 2022. The Kakamega constitutional petition 017 of 2022 was eventually ordered transferred to Lodwar High Court.

14. The respondent further submitted that the applicants having failed to obtain suitable orders to serve their purpose, they proceeded to lodge a third suit based on the same cause of action in Kitale HC and cited as Kitale HC JR application No E003 of 2022 Abraham Lisinyen Ekae and Derrick Koli Epae v The Clerk, County Assembly of Turkana and another. The respondent states that the matter appears to have been transferred to Lodwar HC as Lodwar HC judicial review No E012 of 2022.

15. The respondent beseeched this court to chastise and castigate the applicants by dismissing the instant judicial review application with costs. The respondent further stated that he published in the Kenya gazette notifying the general public of the vacancy in the office of the speaker county assembly, Turkana and invited interested persons to submit nomination papers for the post.

16. The respondent also stated that he received nomination papers from five people who included the applicants. The respondent stated that the two applicants did not qualify for election as speaker of the county assembly because they had not resigned from public office within 6 months preceding the date of election of the speaker contrary to section 43(5) of the Elections Act.

17. The respondent also stated that on September 20, 2022 only one candidate namely: Christopher Doye Nakulei, the interested party herein was the only candidate who qualified he was declared as speaker withy any ballot or vote under standing order No 12.

18. The respondent argued that the County Assembly of Turkana was not a party in Kakamega HC constitutional petition No E015 of 2022 Agava Makhumbiri v The Clerk, County Assembly of Kakamega and 2 others. He also stated that he was not served with the order issued by the Kakamega High Court on September 19, 2022 and that the applicants have failed to provide sufficient evidence to establish service. The respondent was quite emphatic that the first sitting of the Turkana county assembly progressed without the knowledge or notification of any order affecting such proceedings.

19. Having considered the material placed before this court plus the rival submissions, two main issues arise for the determination of this court. First, whether the respondent was aware of the order issued by Kakamega High Court vide Kakamega HC petition No E015 of 2022.

20. Secondly, if the answer to the first issue is in the affirmative, then what is the effect of the decision of the respondent to conduct an election of the speaker in violation of a court order?

21. On the first issue, I have already outlined the rival averments of the parties and I have come to the following conclusions: First, it is not in dispute that the High Court sitting in Kakamega on September 19, 2022 issued orders vide KakamegaHC constitutional petition No E015 of 2022 which read in part as follows:i.That a notice of motion dated September 18, 2022 is certified urgent.ii.That pending the hearing of this application interpartes, a conservatory order be and is hereby issued staying the condition imposed by Independent Electoral and Boundaries Commission and the clerks of County Assemblies in Kenya who are members of the interested party – requiring public/state officers to have resigned by February 9, 2022 in order for such candidates to be eligible to contest for position of speaker of county assembly.iii.That pending the hearing of this application, inter partes, a conservatory order be and is hereby issued requiring the 1st and 2nd respondent and the clerks of the county assemblies in Kenya, being members of the interested party, to unconditionally receive, accept, and process, in accordance with article 193 of the Constitution, applications from all persons qualified to contest the position of county assembly speaker and shortlist them without imposing the condition that such applicants must have resigned from public or state office at least six months before the date of nomination and the petitioner and such other candidates and persons against whom the foregoing condition has been duly imposed to deny clearance, disqualify, or bar from contesting be unconditionally cleared and shortlisted where the elections are pending.iv.That service be effected forthwith to enable response to be filed within seven days after service.v.That hearing on October 6, 2022.

22. Secondly, it is clear from the wording of the aforesaid orders that all the clerks of county assemblies in the Republic including the respondent herein were directed to receive, accept and process applications from all persons qualified to contest the positon of the speaker county assembly and to shortlist them without imposing a condition that such persons must have resigned from state/public office at least six (6) months before the date of nomination. There is no ambiguity in the order.

23. Thirdly, it is not in dispute that the respondent did not accept the nomination of the applicants for the reason that the duo had failed to resign from their employment in public/state offices six months before the date of nomination.

24. The record shows that Abraham Ekai Losinyen was the chief officer, Turkana county government and only tendered his resignation on September 1, 2022 while Derrick Koli Epae, served as the principal clerk assistant at the senate and only resigned on September 12, 2022. The duo were meant to have resigned at least six months before the date of nomination.

25. Forth, it is apparent from the evidence tendered and by the conduct of the respondent that the respondent was aware of the existence of the court orders issued by Kakamega High court. The 1st applicant tendered video evidence downloaded from youtube attached to the supplementary affidavit he swore that the respondent was aware of the court orders directing him to accept the nomination papers of the applicants.

26. It is clear from the audio evidence that the respondent knew that the High Court, sitting in Kakamega had issued the orders directing all the clerks of county assemblies in Kenya not to bar qualified persons from contesting the position of speaker county assembly without prior resignation from public or state officer six months before the date of nomination.

27. Fifth, having found that the respondent was aware of the court orders issued by Kakamega High directed at the society of all clerks of county assemblies in the Republic of Kenya, the respondent was bound by the order despite the fact that the county assembly of Turkana was not a party to the case where the orders were issued. The respondent wilfully chose to ignore the court orders at his own peril.

28. In the case of Eliud Muturi Mwangi (practising in the name and style of Muturi & Co Advocates) v LSG Lufthansa Services Europa/Africa GMBH & Another (2015) eKLR the court held inter alia“(18)The law is that any person who has committed an act of contempt of court is liable for indictment. Therefore, even third parties in a suit may be committed for contempt of court ……”

29. In the case ofGatimu Farmers Company v Geoffrey Kagiri Kimari and 3 others(2005) e KLR the court stated inter alia“It is no defence to a person who is aware of a court order and has deliberately chosen to disobey it to plead that he is not a party to the suit. The court of Appeal in Isaiah Kiplagat & two others v Eric Keter C A Civil application No NAI 239 of 2000 (UR) 111/2000 (Nairobi) (Unreported) held that a court can make an order binding persons who are not parties to a suit if it appears that the person whom the order is directed to seeks to evade to giving effect to the said order issued by hiding behind such persons.”

30. Having concluded the first issue, I now turn my attention to the second issue as to the effect of the respondents of carrying out an election of the position of speaker in violation of a court order. The court has had an occasion to render itself also in the case of Mohamed & 6 others v County Assembly of Wajir and 9 others constitutional petitions E009 and E017 of 2021 (consolidated) (2022) KEHC 169 (KLR) in part as follows“The court has found that the impeachment proceedings were conducted in breach of the constitutional and statutory provisions and in disobedience of the orders of the court made by the High Court, as the constitutional court, prior to the commencement of the impeachment trial proceedings. The proceedings of the county assembly were null and void, as were the subsequent confirmation at the senate flowing from the county assembly determination ……”

31. In the instant case, it is clear that the respondent blatantly breached the court orders whose existence he was aware. This court hereby hold and finds that the election process for the speaker, county assembly of Turkana conducted by the respondent on September 20, 2022 is a nullity and void for being in violation of the orders of this court.

32. In the end, I find the motion dated October 7, 2022 to be meritorious. It is allowed, giving rise to issuance of the following orders:a.An order of certiorari is issued to remove to this court for purposes of being quashed the decision of the respondent declining to clear the applicants as candidates for the position of the speaker on account that the applicants did not resign from a public office within six (6) months from the election date of speaker and the consequent declaration of the interested party as speaker of county assembly of Turkana made on September 20, 2022. b.An order of mandamus is issued compelling the respondent to shortlist the applicants as candidates for the positon of speaker of the county assembly Turkana and conduct fresh elections for the position of speaker of county assembly of Turkana.c.Each party to bear their costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ……………………J. K. SERGONJUDGEIn the presence of:………………………………. for the 1st Applicant……………………….……… for the 2nd Applicant…………………………….…. for the 1st Respondent……………………………….. Interested Party