[2022] KEHC 676 (KLR)

Githinji v Independent Electoral & Boudaries Commission & another; National Assembly & another (Interested Party) (Petition E199 of 2022) [2022] KEHC 676 (KLR) (Constitutional and Human Rights) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 676 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E199 of 2022

AC Mrima, J

May 13, 2022

Between

Francis Githinji

Petitioner

and

Independent Electoral & Boudaries Commission

1st Respondent

Attorney General

2nd Respondent

and

National Assembly

Interested Party

Senate

Interested Party

Ruling

Introduction: 1. The constitutionality and applicability of Section 43(5) of the Elections Act (hereinafter referred to as ‘the impugned provision’) to public officers seeking to be nominated as Deputy Governors has been questioned in the Petition before Court.

2. The impugned provision requires any public officer desirous to run for an elective position to resign 6 months to a general election.

3. The Petitioner filed a Petition and a Notice of Motion. Both are evenly dated 6th May, 2022. I will hereinafter refer to the Notice of Motion as ‘the application’.

4. On the directions of this Court, the application, which was unopposed, was heard on 11th May, 2022, hence this ruling.

The Application: 5. The orders sought in the application are as follows: -1)Thatthis application be certified urgent and be heard ex parte at the first instance.2)ThatHonourable Court be pleased to issue a conservatory order restraining the Independent Electoral & Boundaries Commission (IEBC), its agents, servants and employees from barring any public officer nominated for the position of deputy governor from vying in the General elections on 9th August 2022 on the ground that they did not resign at least six months to the election date as stipulated under the impugned section 43(5) of the Elections Act, 2011 pending the hearing and determination of this application inter partes.3)ThatHonourable Court be pleased to issue a conservatory order restraining the Independent Electoral & Boundaries Commission (IEBC), its agents, servants and employees from barring any public officer nominated for the position of deputy governor from vying in the General elections on 9th August 2022 on the ground that they did not resign at least six months to the election date as stipulated under the impugned section 43(5) of the Election Act, 2011 pending the hearing and determination of this Petition.4)That costs of this application be provided for.

6. The application is supported by the Petitioner’s Affidavit sworn on even date. The Petitioner also filed written submissions dated 11th May, 2022 and List of Authorities.

7. Despite the fact that the application is unopposed, this Court remains under a duty to consider it on merit going forward.

Analysis: 8. I have carefully considered the application, the submissions and the decisions referred to and I discern the following areas of discussions:(i)The nature of conservatory orders;(ii)The guiding principles in conservatory applications; and(iii)The applicability of the principles to the applications.

9. In the interest of time, I will not reproduce verbatim the pleadings and submissions made, but I will certainly take them into account in this decision.

10. I will deal with the above sequentially.

The nature of conservatory orders 11. In Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR, the Supreme Court discussed, at paragraph 86, the nature of conservatory orders as follows: -[86]“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay.

12. The Court in Nairobi Civil Appeal 151 of 2011 Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR defined a conservatory order as follows: -5. A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.

13. In Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR the Court had the following to say about the nature of conservatory orders: -Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.

14. Conservatory orders are, therefore, aimed at preserving the substratum of the matter pending the determination of the main issues in dispute.

15. Given the interlocutory nature of conservatory orders, it is argued, that there is need for a Court to exercise caution when dealing with any request for such prayers. I agree with that proposition for the reason that matters which are the preserve of the main Petition ought not to be dealt with finality at the interlocutory stage.

16. The foregoing was fittingly captured by Ibrahim, J (as he then was) in Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR. The Learned Judge, correctly so, stated as follows: -The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.

17. The decisions in Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General (2011) eKLR, Platinum Distillers Limited vs. Kenya Revenue Authority (2019) eKLR and Kenya Association of Manufacturers & 2 Others vs. Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others (2017) eKLR also variously vouch for the cautionary approach.

18. A Court, therefore, dealing with an application for conservatory orders must maintain the delicate balance of ensuring that it does not delve into issues which are in the realm of the main Petition. In this discourse, I will, therefore, restrain myself from dealing with such issues.The guiding principles in conservatory applications:

19. The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed by Courts over time. They are now well settled.

20. The locus classicus is the Supreme Court in Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others case (supra) where at paragraph 86 stated the Court stated as follows: -(86)…… Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant courses.

21. In Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others [2015] eKLR, the Court summarized the principles for grant of conservatory orders as: -(i)The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice.(ii)The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.(iii)Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.iv.Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.

22. In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR the Court summarized three main principles for consideration on whether to grant conservatory orders as follows: -(a)An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.(b)Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and(c)The public interest must be considered before grant of a conservatory order.

23. The above principles are, however, not exhaustive. Depending on the nature of the matter under consideration, there may be other parameters which a Court ought to look into. Such may include the effect of the orders on the determination of the case, whether there is eminent danger to infringement of the human rights and fundamental freedoms under the Bill of Rights, the applicability of the doctrine of presumption of constitutionality of statutes, whether the Applicant is guilty of laches, the doctrine of proportionality, among many others.The applicability of the principles to the application:i.A prima-facie case:

24. A prima facie case was defined in Mrao vs. First American Bank of Kenya Limited & 2 Others(2003) KLR 125 to mean: -…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.

25. In a ruling rendered on 8th February, 2021 in David Ndii & others v Attorney General & others [2021] eKLR, the Court had the following to say about a prima-facie case: -45. The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and in this case, arguable constitutional issues.

26. What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The Court, in an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint. If he fails to show……. that there has been a failure of public duty, this court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables this court to prevent abuse by busy-bodies, cranks and other mischief-makers... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought. (emphasis added).

27. In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the Court while expounding on what a prima-facie case or arguable case is, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a Court must undertake an intellectual exercise and consider without making any findings, the scope of the remedy sought, the grounds and the possible principles of law involved.

28. The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another(2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396, when the Judge stated thus: -If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.

29. In sum, therefore, in determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22(1) and 258(1) of the Constitution which provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or the when the Constitutionhas been contravened, or is threatened with contravention.

30. In the Petition, the Petitioner seeks the following prayers: -i)A declaration be made that the candidature for persons nominated in the position of deputy governors commences at the time of submitting the gubernatorial aspirants list together with their nominee for the position deputy governor to the IEBC.ii)A declaration be issued that provisions of Section 43(5) of the Elections Act2011, is unconstitutional in so far as it limits the rights of eligible public officers to be nominated as deputy governors on the ground that they did not resign at least six (6) months to the date of general election.iii)An order of prohibition be issued to restrain the Independent Electoral & Boundaries Commission (IEBC), its agents, servants and employees from barring any public officer nominated for the position of deputy governor from vying in the General elections on 9th August 2022 on the ground that they did not resign at least six months to the election date.

31. This Court is aware of the Court of Appeal decision in Civil Appeal No. 139 of 2017: County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (now consolidated with Civil Appeal No. 119 of 2017: Public Service Commission & 3 Others vs. Eric Cheruiyot & 17 Others) (2022) eKLR where the constitutionality and applicability of the impugned provision to pubic officers was extensively dealt with. A reading of the said decision confirms the position that the issues raised by the Petitioner herein were duly considered and settled. The finding of the Court of Appeal in that matter remain binding on this Court.

32. Resulting therefrom, this Court finds difficulty in ascertaining any prima facie in this matter. And, in the words of the Court of Appeal in Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR ‘…if there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief’.

33. Having found that the Petitioner has failed to establish a prima facie case, the discussion on the application has to come to an end.

Disposition: 34. The above analysis yields that the Petitioner has not, in the meantime, successfully laid a basis for the grant of the orders sought in the application.

35. That being the case, the application is unsuccessful. However, given the nature of the Petition herein, there is need for appropriate directions on the way forward.

36. In the end, the following orders hereby issue: -(a)The Notice of Motion dated 6th May, 2022 is hereby dismissed with costs.(b)The Parties shall file written submissions on whether this matter is res judicata Civil Appeal No. 139 of 2017: County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (consolidated with Civil Appeal No. 119 of 2017: Public Service Commission & 3 Others vs. Eric Cheruiyot & 17 Others) (2022) eKLR within 14 days of this order.(c)Highlighting of the submissions on a date to issue.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF MAY, 2022. A. C. MRIMAJUDGE