[2022] KEHC 1380 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

CONTITUTIONAL PETITION NO. E095 OF 2022

BETWEEN

HOWARD ASHIHUNDU M’MAYI............................................................PETITIONER

VERSUS

1. THE INSTITUTION OF ENGINEEERS OF KENYA

2. NATHANIEL MATALANGA

3. MARGARET WARUGURU NGOTHO OGAI

4. CARREN AOKO OYOLLA................................................................RESPONDENTS

RULING NO. 1

1. Howard Ashihundu M’mayi, the Petitioner herein, is a member of the Institution of Engineers of Kenya(hereinafter referred to as ‘the 1st Respondent’ or ‘the Institution’). He is a registered Corporate Member No. M.3249.

2. The Petitioner was desirous of serving the Institution as its President for the period 2022-2024. To that end, he tendered his nomination as provided for under, inter alia, the Institution’s Constitution.

3. His nomination was, however, declined. As a result, the Petitioner instituted the current proceedings.

4. In a bid to secure his rights, the Petitioner filed a Petition dated 7th March, 2022. Contemporaneously, he filed an application by way of a Notice of Motion. The application was evenly dated.

5. The application sought the following orders: -

1. That this Application be certified as urgent and heard on priority basis.

2. That pending the inter parties hearing and determination of the Application, there be a temporary injunction restraining the Respondents from transacting any business meeting and/or the election process for counsel election 2022-2024

3. That pending the hearing of the application inter parties, the Court be pleased declare the council meeting 489 held by the Respondents on 28th February 2022 as illegal, null and void.

4. That pending the hearing of the application inter parties, the Court be pleased to declare that the action by the Respondents vide its letters dated 1" March 2022 cancelling the Petitioner's nomination for council elections 2022/2024 as illegal irregular, null and void.

5. That pending the hearing of the application inter parties, the Court be pleased to quash the decision issued by the Respondents vide its letter dated 19 March 2022 cancelling the Petitioner's nomination for council member elections 2022/2024 for being unconstitutional, illegal and/or irregular.

6. That pending the hearing of the application inter parties, the Court do compel the respondents to admit the nominations papers by the petitioner.

7. That pending the hearing of the application inter parties, the Court be pleased to compel the Respondents to hold a special general meeting to table for discussion and approval of the draft rules governing the conduct of the elections by scrutineers and the electoral code of conduct for IEK council elections.

8. That the costs of and incidental to the application be provided for.

6. In the Petition, the Petitioner prayed for the following reliefs: -

a. Permanent injunction restraining the respondents from transacting any business, meeting and/or the election process for counsel election process for counsel election 2022-2024.

b. The court be pleased declare the council meeting 489 held by the Respondents on 28th February, 2022 is illegal, null and void.

c. The court be pleased to declare that the action by the Respondents vide its letters dated 1st March, 2022 cancelling the petitioner’s nomination for council elections 2022/2024 as illegal, irregular, null and void.

d. The court be pleased to quash the decision issued by the Respondents vide its letter dated 1st March, 20222 cancelling the Petitioner’s nomination for council member elections 2022/2024 for being unconstitutional, illegal and/or irregular.

e. The court do compel the respondents to admit the nominations papers by the petitioner.

f. The court be pleased to compel the Respondents to hold a special general meeting to tale for discussion and approval of the draft rules governing the conduct of the elections by scrutineers and the electoral code of conduct for IEK council elections.

g. Damages.

h. Costs and interest.

i. Any other or further relief this Honourable court may deem fit and just to grant.

7. The Petition and the application were both supported by affidavits sworn by the Petitioner.

8. The application was opposed by the Respondents. They filed a Replying Affidavit sworn by Nathaniel Matalanga, the 2nd Respondent herein. They also filed a List of Authorities.

9. By the directions of this Court, the application was orally heard on 21st March, 2022. Ruling thereof was scheduled for this morning at 8:00am as the 1st Respondent’s electronic voting was scheduled for this very day.

10. The Court also ordered that the voting be stayed pending the ruling. For clarity, this ruling is in respect to the Petitioner’s Notice of Motion dated 7th March, 2022.

11. The parties were represented by Counsel. Mr. Amadi appeared for the Petitioner whereas Mr. Wilfred Nderitu, SC and Miss Shalin Ndirangu jointly appeared for the Respondents.

12. Counsel tendered their respective submissions in support of their clients’ cases.

13. In this ruling, this Court will not reproduce the parties’ cases and submissions verbatim in the interest of the limited judicial time. The Court will, nevertheless, take into account the parties’ pleadings and submissions in this discussion.

14. There are several issues for consideration that arise out of the application. I will deal with them as under.

15. The first issue is on the similarity between the prayers sought in the application and those in the Petition. The twin prayers are already reproduced above.

16. A look at the two sets of the prayers reveal that both the application and the Petition seek similar prayers. The only difference is that the Petition sought a further order on damages.

17. The upshot is, therefore, that allowing the application will be tantamount to allowing the Petition at an interlocutory stage.

18. Closely linked with the foregoing is the nature of the prayers sought in the application. The prayers range from stopping all the transactions of 1st Respondent’s, declaring the 489th Council meeting as illegal, null and void, declaring that the non-acceptance of the Petitioner’s nomination was irregular, null and void, quashing the 1st Respondent’s decision rejecting the Petitioner’s nomination, compelling the admission of the Petitioner’s nomination and compelling the holding of a Special General meeting for the approval of draft rules governing the conduct of the elections by scrutineers and the electoral code of conduct for IEK Council elections.

19. The application was vehemently opposed. I have carefully read and understood the contents of the Replying Affidavit sworn by the 2nd Respondent. I also recall the gist of the submissions.

20. The response has dealt with the issues raised in the application and the Petition at length. By and large, the response tends to demonstrate that the actions of the Respondents, as complained by the Petitioner, were within the Constitution, the law and the IEK’s Constitution.

21. With the Respondents’ rebuttal, the factual issues in contention ought to be considered in light of the parties’ rival positions. The nature of the contested factual issues in this matter call for further interrogation at the hearing of the Petition. Such are not the kind of matters which can be easily settled at an interlocutory stage. For instance, stopping all the operations of the 1st Respondent call for hearing of the parties in the first instance. Such a drastic order may not be readily granted at an interlocutory stage.

22. Courts have been cautioned against making final findings on factual issues at interlocutory stages. The Court of Appeal in Civil Application Nai. 31 of 2016 Alfred N. Mutua v Ethics & Anti-Corruption Commission (EACC) & 4 Others [2016] eKLR stated as follows: -

35. In the instant case, the trial judge made a finding that there was no threat of violation of the applicant’s fundamental rights and freedoms. We remind ourselves that the trial judge made this finding in an interlocutory application. In our view, whether there is a threatened violation is a matter of fact to be ascertained in a full hearing of the Petition.

23. This Court, therefore, finds and hold that given the nature of the prayers sought in the application, the issues therein ought to be safely interrogated at the main hearing of the Petition.

24. There is also the issue of public interest. The competing interests in this matter are the Petitioner’s individual interests, on one hand, as opposed to those of the membership of the 1st Respondent, on the other hand.

25. I have intently perused the Petition. The Petition neither stated the rights and fundamental freedoms allegedly infringed nor demonstrated the manner in which they were allegedly contravened.

26. Without deciding on the issue, this Court’s mind has been drawn to the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLRwhere the Court stated as follows:

Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

27. An attempt to bring out the rights and fundamental freedoms allegedly infringed was made by the Counsel for the Petitioner at the hearing.

28. The danger of such an approach was highlighted by the Court of Appeal in Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which decision cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Sylvester Umaru Onu, JSC stated that: -

It is settled law that parties are bound by their pleadings……the Court below was in error when it raised the issue contrary to the pleadings of the parties.

29. Adereji, JSC in the same case expressed himself thus on the importance and place of pleadings: -

….it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……

…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.

30. The Supreme Court of Kenya as well agreed with the above legal position in a ruling in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR in stating thus: -

[52] Further, the Court went on and observed that: -

In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings….

31. Deriving from the foregoing, it goes without say that the interests of the membership of the 1st Respondent definitely surpasses those of the Petitioner, if any.

32. Having said so, and keeping hope alive, the Petitioner still has an opportunity to present further evidence before Court in support of his claims. In the event the Petitioner is able to persuade the Court in its favour, the Court will not be handicapped. The Court has powers to even set-aside the elections and order fresh ones.

33. The above position was reiterated by the Court of Appeal inNelson Andayi Havi vs. Law Society of Kenya & 3 Others(2018) eKLR where the Court stated as follows: -

Having carefully considered the rival contentions we are not persuaded, in the circumstances of this case, that the holding of the forthcoming elections will negate the applicant’s intended appeal, if it ultimately succeeds. Those elections are not immutable; this Court can nullify them if it finds that they were conducted on the basis of an illegal and unconstitutional framework that among other things discriminated against or disenfranchised the applicant and other members of LSK. The applicant will then have an opportunity to contest if it is determined with finality that indeed he is eligible to run for the office of president of LSK. The determination of this Court after hearing the intended appeal will have two possible consequences. If the appeal is dismissed and we have in the meantime stopped the elections, it will mean losses that are not petty cash for a professional society that is financed primarily by members’ subscriptions. It will also throw into confusion the prescribed statutory calendar and disrupt or undermine the discharge of critical statutory and national functions vested in LSK such as regulation of the legal profession, resolution of complaints against practitioners, and assisting in the administration of justice and the practice of law in the country. If on the other hand the appeal succeeds, the applicant will have an opportunity to contest in the ensuing by-election. The primary prejudice that he will suffer is a delay in the realization of his ambition to lead the LSK, which we think can be mitigated or reduced substantially by fast-tracking the hearing and determination of his appeal. In our view that scenario is not synonymous with rendering the appeal nugatory. If he really wished, the applicant could be adequately compensated for any delay that is entailed, by award of damages….

34. The Petitioner opted to institute a constitutional Petition. Such a Petition is premised on the basis of raising constitutional issues.

35. A constitutional issue was defined in Fredricks & Others vs. MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC) as follows: -

The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…

36. In the United States of America, a constitutional issue refers to any political, legal, or social issue that in some way confronts the protections laid out in the US Constitution.

37. This Court is further guided by the decision in Turkana County Government & 20 Others vs. Attorney General & Others (2016) eKLR where a Multi-Judge bench affirmed the profound legal standing that claims of statutory violations cannot give rise to constitutional violations.

38. Taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.

39. In the words of Langa, J in Minister of Safety & Security vs. Luiters,(2007) 28 ILJ 133 (CC): -

… When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…

40. As said, in this case, the Petitioner never pleaded the infringement of any provision of the Constitution in the Petition. In that state of affairs, this Court cannot, even through judicial craft, attempt to read into the Petition any violation of the Constitution. I say so because the Court must always remain as an independent umpire and uphold the principle that parties are bound by their pleadings.

41. In instances where a party fails to plead with precision the violations of the Constitution, but instead rests its case on violations of statutes or subsidiary legislations, such pleadings cannot lie within the confines of constitutional Petitions. In that case, it is highly doubtful if the jurisdiction of a constitutional Court would be properly invoked.

42. The above is the obtaining position in this matter. Since the Petitioner did not plead any constitutional issues, one, therefore, wonders how he can sustain an argument that he has demonstrated a prima facie case against the Respondents.

43. The Court of Appeal in Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] eKLR dealt with instances where a party fails to demonstrate a prima facie in an application seeking injunctive orders. The Court held that: -

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…

44. The above was initially held in American Cyanamid vs Ethicon Limited [1975] AC 396.

45. I believe this Court has said enough to affirm the position that the Petitioner has failed to demonstrate a prima facie case in the circumstances of this matter. As such, this discussion can safely come to a close.

46. This Court is, hence, satisfied that the Petitioner has failed to satisfy any of the conditions laid in the locus classicus case of Giella vs Cassman Brown Co. Ltd[1973] EA 358 where it was held that in order to grant the injunction the Court must be satisfied that: -

a. The Applicant had established a prima facie case with probability of success;

b. The Applicant stood to suffer irreparable loss which could not be compensated by an award of damages; and

c. If the Court was in doubt, the application would be determined on a balance of convenience.

47. As I come to the end of this decision, I must reiterate that parties will have to expeditiously deal with the main Petition. The Court shall, hence, issue appropriate directions.

48. In the end, this Court hereby issues the following orders: -

a. The Notice of Motion dated 7th March, 2022 be and is hereby dismissed. Costs in cause.

b. The order staying the voting scheduled for this morning is hereby set aside and/or discharged.

c. Further directions on the hearing of the Petition on a date to issue.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MARCH, 2022

A. C. MRIMA

JUDGE

Ruling No. 1virtually delivered in the presence of:

Mr. Amadi,Learned Counsel for the Petitioner.

Mr. Wilfred NderituandMiss. Shalin Nderitu,Learned Counsel for the Respondents.

Elizabeth Wanjohi –Court Assistant.