[2022] KEHC 3242 (KLR)

Gitau & 2 others v Independent Electoral and Boundaries Commission & 3 others; United Democratic Alliance Party & another (Interested Party) (Petition E332, 335 & E336 of 2022 (Consolidated)) [2022] KEHC 3242 (KLR) (Constitutional and Human Rights) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3242 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E332, 335 & E336 of 2022 (Consolidated)

HI Ong'udi, J

July 14, 2022

Between

David Gitau

1st Petitioner

Anthony Machafu Muthee

2nd Petitioner

Timothy Charo Odhiambo

3rd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Returning Officer Nairobi County

2nd Respondent

Sakaja Johnson Arthur

3rd Respondent

Attorney General

4th Respondent

and

United Democratic Alliance Party

Interested Party

Commission for University Education

Interested Party

Ruling

1. The three petitioners filed separate petitions namely Petition Nos E332/2022, E335/2022 & E336/2022. They were eventually consolidated on 7th July 2022 owing to the fact that they draw from the same substratum.

2. File No. E332/2022 is the lead file with parties appearing as shown below:David Gitau..… …………………….……..1st petitionerAnthony Machafu Muthee…..…………2nd petitionerTimothy Charo Odhiambo………………3rd petitionerVersusIndependent Electoral and Boundaries Commission…………………1st respondentThe Returning Officer, Nairobi County……...2nd respondentSakaja Johnson Arthur...….…………………...3rd respondentHon. Attorney General…….…………………...4th respondentAndUnited Democratic Alliance Party………1st interested partyCommission for University Education….2nd interested party

3. Upon consolidation Mrima J directed that this Court handles the consolidated Petitions based on the fact that he would be rendering a Judgment in a related matter. He also directed that the Court first determines the Preliminary Objections filed herein.

4. The matter was set for highlighting of the submissions on the preliminary objection. The related matter Mrima J was handling is Petition No. E321/2022. Judgment in the said suit was delivered on 12th July 2022. This Court directed counsel to read the Judgment and address it on the impact of the said Judgment on the present petitions, since they were said to share the same substratum.

5. The counsel for all the three petitioners submitted that the Judgment in Petition No. E321/2022 had no impact on the three (3) petitions. It was urged that the subject of Petition E321/2022 was a decision by the Dispute Resolution Committee (DRC) of the 1st respondent, and the decision by the 1st respondent to nominate the 3rd respondent as a candidate. However on 29th June 2022 the 3rd respondent’s degree certificate was withdrawn hence the filing of Petition No. E343/2022.

6. It’s their further submission that the parties and subject matter in E321/2022 are different from what is before this Court. They submitted that their petitions were based on the letter dated 29th June 2022, which was not the subject of the petition before Mrima J. Counsel referred to paragraph 235 of the Judgment which listed all the documents which had been referred to. Counsel stressed that the decision by the Independent Electoral and Boundaries Commission (IEBC) is the subject of this petition. Further that had the letter of 29th June 2022 been dealt with, the Petition No. E343/2022 would have been withdrawn.

7. Counsel for the respondents argued that the Judgment in Petition No. 321/2022 determined all the issues, and prayers in the present consolidated petitions. That the Court made a determination on whether the 3rd respondent had been properly registered as a candidate and whether he holds a degree or not. Counsel urged that Mrima J found that in the absence of a conviction a candidate could not be barred from vying. That any new material ought to be sent to the DCI for investigations.

8. Counsel dismissed whatever was relied on as new evidence. It is their argument that handling these petitions would amount to sitting on appeal on issues already determined by Mrima J.

9. Mr. Kiprono for the 1st interested party associated himself with the submissions by counsel for the respondent. He stressed that the prayers sought in these appeals were well addressed in the Judgment in Petition No. E321/2022.

10. Mr. Thande for the 2nd interested party submitted that this matter was different from Petition No. E321/2022. That the Commission for University Education (CUE) which is the key party herein was not a party in the Petition No. E321/2022. That the issue which relates to the letter dated 29th June 2022 is being challenged by the 3rd respondent. That the Judgment in Petition No. E321/2022 did not make any finding on the authenticity of the degree certificate of the 3rd respondent.

11. The Court has also been referred to Regulation 47 of the Election (General) Regulations 2012. Mr. Kipkogei submitted that the said regulation does not provide for authentication of the degree by the CUE.

12. Mr. Wathuta referred the Court to the case of Mohammed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 others; Ahmed Ali Muktar (interested) [2019] eKLR.

13. I have considered all the submissions by counsel. I have also considered other relevant petitions being Petition No. E321/2022 where Judgment was delivered by Mrima J on 12th July 2022. A Notice of Appeal has in the meantime been lodged in respect of the said Judgment. It’s dated 13th July 2022.

14. The other Petition is No. E343/2022, where the proceedings have been stayed for two weeks as the 3rd respondent pursues an appeal against the decision to revoke his degree certificate by the 2nd interested party. Pursuance of the appeal is a right bestowed on any person wishing to challenge an administrative decision.

15. The three (3) petitions herein are premised on the revocation of the 3rd respondent’s degree certificate. It would not be proper for this Court to continue hearing this matter when the decision by the 2nd interested party is being contested by way of appeal / review before the said body. The most appropriate action would be to temporarily stay these proceedings to await the outcome of the appeal.

16. The above being the position I will not address the issue of the impact of the Judgment in Petition No. E321/2022 until a later stage.

17. I therefore order for a temporary stay of the proceedings herein pending the outcome of the appeal filed by the 3rd respondent before the 2nd interested party. Mention on 28th July 2022 alongside Petition No. E343/2022, for further directions.Orders accordingly.

DELIVERED VIRTUALLY SIGNED AND DATED THIS 14TH DAY OF JULY 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. Ong’udiJudge of the High CourtPresentLovender – Court Assistant.