[2022] KEHC 12028 (KLR)

George Bush & another v Directorate of Criminal Investigations & 6 others (Miscellaneous Application E004 of 2022) [2022] KEHC 12028 (KLR) (Constitutional and Human Rights) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12028 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Miscellaneous Application E004 of 2022

AC Mrima, J

May 9, 2022

Between

George Bush

1st Applicant

Seleb John Kengah

2nd Applicant

and

Directorate of Criminal Investigations

1st Respondent

The Director of Public Prosecutions

2nd Respondent

The Inspector General of Police

3rd Respondent

The Registrar Of Political Parties

4th Respondent

The Independent Electoral And Boundaries Commission

5th Respondent

Raila Amolo Odinga

6th Respondent

Orange Democratic Movement

7th Respondent

Ruling

Introduction: 1. This ruling relates to a Notice of Preliminary Objection dated April 5, 2022. It was filed by the 5th Respondent herein, the Independent Electoral and Boundaries Commission. The objection impugned the jurisdiction of this Court.

2. The objection is supported by the rest of the Respondents, but it is opposed by the Applicants.

The Parties’ positions and submissions: 3. The objection is tailored as follows: -1. The Constitution of Kenya dedicates its finest provisions to condemn without mercy any attempt to scatter a private citizen's initiative to safeguard the constitution and any other laws of Kenya from gross violation based on the grounds raised by the 5th Respondent in their Preliminary Objection.2. That in clear and accessible language, the Constitution of Kenya in Article 23 allocates original and unlimited jurisdiction to the High Court of Kenya to Hear and Determine issues that we brought before the court for redress in the current application.3. That Articles 3, 22, 23 and 258 commissions any private citizen to seek in an obligatory manner the protection of the constitution from gross violations at the High Court of Kenya. Any argument to the contrary can only be likened to a precision missile directed at the very anchor and heart of the constitution.4. The drafters of the constitution, well aware of the enormous task placed on the shoulders of citizens in Articles 3, 23 and 258 by the constitution, sought in Article 159(2)(d) to shield the pursuit of justice and defense of the constitution from any hurdles erected on the pretext of procedural technicalities.

4. The parties tendered submissions on the objection. The 5th Respondent filed written submissions dated 3rd May, 2022. The rest of the Respondents did not file any submissions, but associated themselves with the submissions of the 5th Respondent.

5. The Applicants filed Grounds of Opposition to the objection. They are dated April 25, 2022. The Applicants adopted the grounds of opposition as their submissions against the objection.

6. The 5th Respondent’s written submissions referred to several decisions.

7. Due to the nature of the submissions tendered and the gist of the objection coupled with urgency in this matter, I will not, at this point in time, reproduce the parties’ submissions verbatim. I will however, make reference to the submissions in the analysis. That said, I must state that I have carefully considered the submissions and the decisions referred to therein and I have not lost sight of any of the arguments put forth by the parties as I render this ruling.

8. I will now deal with the issues for determination.

Issues for Determination: 9. From the record, I discern the following issues for determination: -(i)Whether the Preliminary Objection is sustainable in law.(ii)Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute.(iii)Disposition.

10. I will deal with the above issues in seriatim.

a. Whether the Preliminary Objection is sustainable in law: 11. The validity of any preliminary objection is gauged against the requirement that it must raise pure points of law capable of disposing the dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.

12. The foregoing nature of preliminary objections was discussed in Mukisa Biscuit Manufacturers Ltd v Westend Distributors Ltd, (1969) E.A. 696 page 700 when the Court observed as follows: -...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration....A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.

13. In Civil Suit no 85 of 1992, Oraro v Mbaja [2005] 1 KLR 141, Ojwang J, as he then was, cited with approval the position in Mukisa Biscuit v West End Distributors (supra) and stated as follows on the operation of preliminary objection: -…. I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.

14. In Omondi v National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a preliminary objection can look at the pleadings and other relevant documents but must abide by the principle that the objection must raise pure points of law. It was held thus: -…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion.

15. The question whether jurisdiction is a point of law was set out clearly by the Supreme Court in Petition no 7 of 2013 Mary Wambui Munene v Peter Gichuki Kingara and Six Others, [2014] eKLR, when the Learned Judges stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.

16. The Apex Court had earlier on in Constitutional Application no 2 of 2011, In the Matter of Interim Independent Electoral Commission (2011) eKLR observed as follows in regard to jurisdiction and its source: -… Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid down in judicial precedent.

17. The Preliminary objection in this matter is founded on basis of the doctrine of exhaustion. The doctrine is a sound legal one which is applicable to constitutional petitions. In essence, except in instances where the exceptions to the doctrine apply to a matter, the doctrine of exhaustion presents a complete bar to proceedings in Court. Therefore, the objection is capable of wholly disposing the matter if successful. To that end, the objection passes the propriety test and is for consideration.

b. Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute: 18. The crux of the objection is that the Court is barred from dealing with the dispute on account of lack of jurisdiction.

19. In support of the objection, the 5th Respondent submitted that it is trite law that where there is an alternative remedy provided by the Constitution or an Act of Parliament which remedy is effective and applicable to the dispute before the Court, the Court ought to exercise restraint and allow the alternative process to first deal with the matter.

20. In this matter, it is further submitted that the dispute is in respect of the eligibility of hon Raila Amolo Odinga, the 6th Respondent, in being nominated to take part in the August General election. To that end, the 5th Respondent posited that the right forum to deal with such a dispute is before the Independent Electoral and Boundaries Commission courtesy of Articles 87 and 88 of the Constitution, Section 74 of the Elections Act, 2011 and Section 4(e) of the Independent Electoral and Boundaries Commission Act, 2011.

21. In buttressing the argument, the 5th Respondent referred to not less than 10 decisions on the issue.

22. It was also argued that even if this Court finds that it was possessed of jurisdiction, still the matter was a non-starter since the application before Court did not raise any constitutional issues or at all.

23. Opposing the objection, the Applicants submitted that they were empowered under Articles 3, 22, 23 and 258 of the Constitution to initiate proceedings to protect the contravention of the Constitution.

24. They further argued that the current proceedings are in defence of the Constitution.

25. They urged this Court to dismiss the objection.

26. From the above arguments, there is the need to look at the doctrine of exhaustion and its applicability in this matter.

27. The starting point is a discussion on the nature and the intention of the doctrine.

28. The doctrine of exhaustion in Kenya traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -159(2)In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-(a)…(b)…(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

29. Clause 3 is on traditional dispute resolution mechanisms.

30. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition no 159 of 2018 consolidated with Constitutional Petition no 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

31. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R v Independent Electoral and Boundaries Commission (IEBC) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others v Aelous (K) Ltd and 9 Others.)60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.

32. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal no 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others[2019] eKLR held as follows: -The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic v Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.

33. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly v Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.

34. Returning back to the case at hand, the Applicants herein did not file a Petition, but only an application by way of Notice of Motion dated 13th January, 2022.

35. The application sought the following orders: -1. That the instant application be certified urgent.2. That the 3rd Respondent is ordered to deploy police officers to accompany the petitioners during service of court documents to respondents and to ensure security of petitioners until this matter is dispensed with.3. That the 1st and 2nd respondents be ordered to commence criminal investigations and Prosecutions against the 6th Respondent.4. A conservatory order be issued against 4m and 5th respondents to restrain the said institutions from clearance or issuing nomination certificate for purposes of presidential election scheduled for 9 August 2022 to the 6th respondent until the petition herein is heard and determined.5. That the 4th and 5th respondent be barred from clearing and issuing nomination certificate to candidates fielded by the 7th respondent for purposes of the general election to be held on 9 August 2022 until the petition herein is heard and determined.6. That there be no costs in relation to this application.

36. The application, therefore, mainly sought two key prayers. First is that the 6th Respondent be barred from any nomination or participation in the general election on account of committing a criminal offence in the nature of treason. The second prayer is that the 1st and 2nd Respondents be ordered to commence criminal investigations against the 6th Respondent.

37. I will begin with the aspect of the investigations.

38. Article 243 of the Constitution establishes the National Police Service. Under Article 244, the Constitution provides the objects and functions of the National Police Service.

39. The legislation contemplated in Article 243(4) of the Constitution is now the National Police Service Act, no 11A of 2011 (hereinafter referred to as ‘the Police Act’).

40. The Police Act in its preamble provides that it is an Act of Parliament to give effect to Articles 243, 244 and 245 of the Constitution; to provide for the operations of the National Police Service; and for connected purposes.

41. The Police Act further and variously provides for the functions of the National Police Service. Of relevance to the current proceedings is the duty to prevent, detect and investigate crimes either on its own motion or upon lodging of a complaint to the police.

42. In their disposition, the Applicants averred that the 6th Respondent took part in a criminal activity on 30th January, 2018 in forming a Government contrary to the Constitution. Further, it was deposed that some of the persons present during the illegal event were charged in Court, but not the 6th Respondent and more so without any justification.

43. It is on that background that the Applicants urge prayer 3 of the application.

44. I have carefully perused the application and the supporting affidavit. The Applicants did not contend that they lodged any complaint to the police against the 6th Respondent in vain. no Their concern was why the 6th Respondent was spared of prosecution.

45. Given the scenario herein, the law and the Constitution, it appears the Applicants had two options over the matter. The first option is to lodge a formal complaint against the 6th Respondent with the police. In the event of inaction on the part of the police, the Applicants may exercise the other option of instituting private prosecution against the 6th Respondent or instituting other appropriate proceedings.

46. As the Applicants have so far not involved the police in any way over the matter, the current proceedings are premature. The Constitution created a State organ and a forum for dealing with such complaints. That organ and forum is the National Police Service.

47. The Applicants have not explained why they did not invoke the laid down process over their complaint. What the Applicants did was to outrightly disregard the Constitution and the law and rush to Court, a forum of their own choice, without demonstrating why the remedy they are seeking before Court is not available before the constitutional and legislative forum.

48. In such a case, the Applicants are barred from invoking the Court process before either lodging a complaint with the police or demonstrating how the doctrine of exhaustion does not apply in the matter. The Applicants have failed to prove either.

49. I will now deal with the other issue on whether the dispute ought to have been dealt with by the 5th Respondent herein.

50. As captured above, gist of the application is that the 6th Respondent be barred from any nomination or participation in the general election on account of committing a criminal offence in the nature of treason.

51. Article 82(1) of the Constitution provides as follows: -Parliament shall enact legislation to provide for-(a)the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;(b)the nomination of candidates;(c)the continuous registration of citizens as voters;(d)the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and(e)the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.

52. In Article 88, the Constitution established the Independent Electoral and Boundaries Commission. It provides as follows: -(1)There is established the Independent Electoral and Boundaries Commission.(2)A person is not eligible for appointment as a member of the Commission if the person--(a)has, at any time within the preceding five years, held office, or stood for election as--(i)a member of Parliament or of a county assembly; or(ii)a member of the governing body of a political party; or(b)holds any State Office.(3)A member of the Commission shall not hold another public office.(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.(5)The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.

53. Section 74 of the Elections Act further provides for the settlement of disputes as follows: -74. Settlement of certain disputes:(1)Pursuant to Article 88 (4) (e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2)An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3)Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

54. Section 4 of the Independent Electoral and Boundaries Commission Act (hereinafter referred to as ‘the IEBC Act’) provides the functions of the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the 5th Respondent’ or ‘the Commission’) as follows: -4. Functions of the Commission:As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards in accordance with the Constitution;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development and enforcement of a code of conduct for candidates and parties contesting elections;(k)the monitoring of compliance with the legislation required by Article 82(1)(b) of the Constitution relating to nomination of candidates by parties;(l)deleted by Act no 36 of 2016, s. 30;(m)the use of appropriate technology and approaches in the performance of its functions; and(n)such other functions as are provided for by the Constitution or any other written law

55. There is also Section 40 of the Political Parties Act, no 11 of 2011 which provides for the jurisdiction of the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’). The Tribunal is established under Section 39 of the said Act.

56. The jurisdiction of the Tribunal is provided as follows: -(1)The Tribunal shall determine-(a)disputes between the members of a political party;(b)disputes between a member of a political party and the political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners;(f)appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.(3)A coalition agreement shall provide for internal dispute resolution mechanisms.

57. The foregoing provisions of the Constitution, the Elections Act, the IEBC Act and the Political Parties Act inevitably affirm the position that the duty to deal with all pre-election disputes, save the disputes falling before the Tribunal, is vested in the Commission.

58. In this matter, there is no doubt that the Applicants’ dispute is not among those contemplated to be dealt with by the Tribunal. It, therefore, means that the dispute can only be dealt with by the Commission.

59. As the Applicants have instead opted to file the current proceedings before this Court, they are under a duty to demonstrate why the Commission is not the ideal forum for resolution of the dispute.

60. The Applicants have not attempted to discharge the onus either in the application or the submissions. In fact, the Applicant did not respond to the issue even after it was formally raised vide the objection. Having failed to do so, the jurisdiction of this Court was improperly invoked.

61. Deriving from the above, it now turns out that the Applicants ought to have either lodged a complaint with the police over the criminal allegations against the 6th Respondent or instead lodged a complaint before the Commission or both. Short of either, the Applicants ought to have demonstrated why the forums are not suitable in the circumstances of this matter.

62. Having so found, it serves no purpose to ascertain whether the application raised any constitutional issues. Such will be an academic exercise.

63. Arising from the failure to undertake any of the above avenues, the only recourse available to this Court is to decline jurisdiction over the application.

64. In the end, the following orders do hereby issue: -a.The Notice of Preliminary Objection dated April 5, 2022 is merited.b.The Notice of Motion dated January 13, 2022 is hereby struck out for want of jurisdiction.c.There shall be no order as to costs as the matter is in public interest.d.Filed marked as closed.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF MAY, 2022. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:George Bush and Seleb John Kengah, Applicants in person.Miss Kiramana, Counsel representing the hon Attorney General for the 1st and 3rd Respondents.Mr. Achochi, Counsel for the 2nd Respondent.Miss. Ng’ang’a, Counsel for the 5th Respondent.Mr. Nderitu, Counsel for the 7th Respondent.Jared Otieno – Court Assistant.