[2022] KEHC 9859 (KLR)

Hussein v Returning Officer (Civil Appeal E432 of 2022) [2022] KEHC 9859 (KLR) (Civ) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9859 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E432 of 2022

JK Sergon, J

July 12, 2022

Between

Fatma Adam Hussein

Appellant

and

Returning Officer

Respondent

(An appeal against the Decision of the Dispute Resolution Committee, dated and delivered on the 17th June 2022 by Commissioners Wambua Kilonzo, Irene Masit & Justus Nyang’aya)

Judgment

1. The appellant in this case, Fatma Adam Hussein, filed a complaint with the Disputes Tribunal Resolution Committee. She claims that due to time constraints, she was not given enough time to gather photocopies of identification cards for her support, and that when she did collect them and appeared before the returning officer, the respondent refused to accept her nomination papers to run as an independent candidate for the position of Member of National Assembly for the Langata Constituency in Nairobi County.

2. The respondent averred that out of 1000 supporters required the complainant to produce a list of only 51 supporters with no identity card copies for the said supporters when the appellant appeared before her on 31st May 2022 at 11:36 am but the respondent allowed her until 4. 00 p.m same day to meet the requirements, the appellant came back at 5:01 pm with 139 signatures of supporters and the accompanying photocopies of identity cards.

3. In response, the appellant pointed out that she was misled by one Mr. Eric an IEBC officer that the deadline for the submission of nomination paper and accompanying documents was 29th June 2022 at 3. 00 pm but admits that as at 31st May 2022 when she appeared for clearance she had not met the requirements on the number of supporters which she claims was inadvertent and caused by the misinformation by the said Mr. Eric.

4. On 17th June 2022, the Independent Electoral and Boundaries Commission, Disputes Resolution Committee heard the dispute and came to the following conclusions:a)That the complainant has not demonstrated compelling reasons to warrant an extension of time to comply with the nomination requirements.b)That the committee upholds the decision of the returning officer, Langata Constituency to reject the complainant’s nomination paper on 31st May 2022 to run for the position of Member of National Assembly Langata Constituency in Nairobi County in light of provisions of Article 99 (1) (c) (i) of the Constitution and Regulation 43 (2) (d) of the Elections (General) Regulations, 2012.

5. Being dissatisfied with the aforesaid ruling, the appellant preferred this appeal and put forward the following grounds:a)That the commissioners erred in law and fact by completely failing to appreciate that the respondent herein admitted that indeed the said Mr. Eric who misled the appellant herein was the Commission’s ICT Officer at the Langata Constituency Offices.b)That the commissioners erred in law and fact in failing to appreciate that the said Mr. Eric not being just an ordinary individual but an employee of the Commission under supervision of the respondent herein, the respondent was vicariously responsible/liable for his actions and the appellant had no reason whatsoever to doubt the (mis)information that was given to her when her representative collected her documents.c)That the commissioners erred in law and fact in failing to appreciate that once the appellant established that she had been misled, she immediately sought audience with the respondent in an attempt to remedy the situation despite the statutory and constitutional timelines.d)That the commissioners erred in law and fact in failing to appreciate that when the appellant appeared before the Dispute Resolution Committee, the appellant had fully satisfied all constitutional and statutory requirements despite being informed of the same.e)That the commissioners erred in law and fact in failing to appreciate that were it not for the said misinformation by the IEBC ‘s ICT employee, the appellant would have met the constitutional and statutory deadline of 31st May 2022. of having all the requisite copies of national identity cards of her supporters.f)That the commissioners erred in law and fact in failing to appreciate that the applicant, who is female, comes from a marginalized group and was seeking a political position not sought by many women.g)That the commissioners erred in law and fact in failing to appreciate that the appellant is highly educated with a Masters in International Relations and is well placed to deal with policy issues.h)That the commissioners erred in law and fact by exercising their discretion unreasonably and unfairly by dismissing the appellant’s complaint.

6. The respondent opposed the appellant’s appeal on the grounds that the same is bad in law, incompetent, misconceived and an abuse of this honourable court’s process for the following reasons:i.That pursuant to powers conferred to the independent and electoral boundaries commission in Article 88(4), 97(1)(a), 99, 101 of the Constitution as read together with sections 2,16,20,24,28,29,30,31,33,35,38,39,43 and 74 of the Elections Act, a special Gazette Notice No.430 (Vol.CXXIV-N0. 14) dated 20th January ,2022 was published indicating the nomination timelines for the aspirants seeking to be members of the National Assembly to the general public including the appellant herein.ii.That the special gazette easily accessible on the IEBC website https//www.iebc.or.ke/electionslaws/Gazette Notices at paragragh k indicated that the days for nomination of political party candidates and independent candidates was between Sunday 29th May 2022 and Tuesday 31st May 2022. iii.That the appellant herein was clearly scheduled for clearance on 31st May 2022 between 10:00 am and 10:40 am. Thus, she was aware that she had to appear at the scheduled time with 1000 signatures which she failed to do despite the returning officer extending the timelines for help up to 4. 00p.m on 31st May 2022. iv.That there no compelling or exceptional circumstances to warrant the extension of time for the appellant to submit her nomination papers because as at 31st May 2022, 5:01 pm the appellant had only secured 139 signatures from her supporters contrary to the provisions of Article 99 (1)(c)(i) of the Constitution which provides for at least 1000 registered voters in the Constituency for the respondents to clear her.v.That as an aspirant for an elective political position for the Member of National Assembly and an independent candidate, it is only reasonable that appellant carries out due diligence and be versed with statutory timelines set by the independent Electoral and Boundaries Commission. Ignorance of the law is no defence or excuse and allowing the appeal will be tantamount to enforcing an illegality as was emphasized by the Supreme Court in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 Others(2013)eKLR (Petition No. 5, 3 & 4 of 2013) that timelines provided in the law must be followed. Further, the Court in Ferdinand Ndungu Waititu v Independent Electoral & Boundaries Commission, IEBC & 8 Others (2013) eKLR held that timelines set by the Constitution and the Elections Act are neither negotiable nor can they be extended by any court for whatever reason.vi.That the appellant slept on her rights and later by fault or design blames the Independent Electoral and Boundaries Commission officer who is not tasked to disseminate information. The IEBC cannot be vicariously liable because the said information was exchanged through calls between a Mr. Eric and the appellant herein in their respective personal capacities which IEBC has no control over. Since the appellant chose to establish a working relationship with an alleged Mr. Eric who the appellant claims was an IEBC ICT officer, IEBC cannot be held liable for their personal transactions.vii.That in addition, the appellant failed to ascertain the IEBC’s officer designation and whether he was authorized to channel the information the appellant allegedly received from him, In fact in the appellant’s further affidavit, she confirms that she was in doubt but still chose to establish a working relationship with the said Mr. Eric. Therefore, there are no grounds attaching vicarious liability to IEBC for the alleged misinformation if indeed such happened because the same happened outside the scope of employment.viii.That the said appeal is frivolous, vexatious and an abuse of the Court Process and does not particularize and/or raise a cause of against the respondent.

7. This court gave directions to have this appeal be determined by written submissions.

8. I have re-evaluated the complaint that was before the IEBC Dispute Resolution Committee. I have further considered the rival submissions plus the authorities cited by the parties and the respondent’s grounds of opposition. Though the appellant put forward a total of eight (8) grounds of appeal those grounds may be summarized to two main grounds:i.Whether the appellant's failure to meet the deadlines set by the Commission is the respondent's fault.ii.Whether the respondent followed the rules when it disqualified the appellant from running as an independent candidate?

9. As regards the first ground of appeal, it is the submission of the appellant that the respondent being the senior most official from the Commission at the Langata constituency office cannot escape vicarious liability of her junior officers actions and inactions

10. On this the appellant relied on the case of Tabitha Nduhi Kinyua v Francis Mutua Mburi &Another CA 180 of 2009(2014) eKLR where the court stated that:“The principle of vicarious liability is an anomaly in our law because it imposes strict liability on an employer for the delict of its employee in circumstances in which the employer is not itself at fault. An employer will be held to be vicariously liable if its employee was acting within the course and scope of employment at the time the delict was committed. The test for establishing whether an employer is vicariously liable for his/her servant’s negligence was set out in this Court’s decision in Joseph Cosmas Khayigila –vs- Gigi & Co. Ltd & Another, - Civil Appeal No. 119 of 1986 as follows:-“In order to fix liability on the owner of a car for the negligence of the driver, it was necessary to show either that the driver was the owner’s servant or that at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request, express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”

11. The appellant submitted that based on a fact that an ordinary citizen such as the appellant, a commission official such as the ICT officer herein, is not an ordinary person and any statements made by him or her are held in high regard and cannot be easily or casually wished away.

12. The appellant pointed out that the committee failed to appreciate that once the appellant established the ICT officer’s deception, she immediately sought audience with the respondent to remedy the situation by seeking leave to have a meeting rescheduled from 29th May 2022 to the 31st May 2022.

13. On the other hand, the respondent contends that the appellant should exercise due diligence and be familiar with the statutory deadlines established by the IEBC who cannot be held vicariously liable because the said information was communicated through calls between a Mr. Eric who is unknown to them and the appellant in this case in their respective personal capacities, over which the IEBC has no control.

14. The respondent further contends that the appellant failed to ascertain the IEBC’s officer designation and whether he was authorized to channel the information as the appellant confirmed that she was in doubt but still choose to establish a working relationship with the said Mr. Eric.

15. The respondent on this argument relied on the case of Ferdinand Ndungu Waititu v Independent Electoral & Boundaries Commission, IEBC & 8 Others (2013) eKLR held that :“These timelines set by the Constitution and the Elections Act are neither negotiable nor can they be extended by any court for whatever reason. It is indeed the tyranny of time, if we may call it so.”

16. I am persuaded by the respondent’s argument that the IEBC published a special Gazette Notice No. 430 (Vol.CXXIV-No.14) dated January 20, 2022, within the powers conferred to them by the Constitution and the Election Act, outlining deadlines that candidates for the National Assembly were required to meet. As a result, the respondent cannot be held liable in any way because the gazette notice was in the public domain. On this I rely on the Ferdinand Ndungu Waititu v Independent Electoral & Boundaries Commission, IEBC & 8 Others (supra)“It must be for this reason that the drafters of the Constitution included these timelines, and the Court cannot purport to extend these timelines as to do so would amount to exercising a jurisdiction that we do not have.”

17. In the Hassan Ali Joho and Hazel Ogunde Vs Suleiman Said Shahbal, IEBC and Others ( [2013] eKLR), the Supreme Court of Kenya also stated that:“As the apex Court, we must always be ready to settle legal uncertainties whenever they are presented before us. But in so doing, we must protect the Constitution as a whole. Election Courts and the Court of Appeal, have a discretion in ascertaining the justice of each case to balance justice, but that discretion must be concretized in enforcing the Constitution.”

18. In respect of the second ground of appeal, the appellant is of the submission that the complaints entertained and determined by the disputes committee are governed by section 74 of the Elections Act and though being disputes in nature, are not elections petitions or disputes subsequent to the declaration of election results.

19. The appellant further submitted that the Elections Act and the Constitution of Kenya, 2010, both stipulate that the aforementioned complaints and appeals therefrom are not subject to the same strict deadlines as those governing election petitions and disputes after the declaration of election results, and that the Committee completely failed to understand the circumstances and thus reached the incorrect conclusion.

20. The respondent on the other hand submitted that the appellant submitted her nomination papers despite the fact that, as of May 31, 2022, she had only collected 139 signatures, which is in violation of the provisions of article 99 (1) (c)(i) of the Constitution, which states that an independent candidate must receive support from at least 1000 registered voters in the constituency to be eligible for clearance and election as a member of the National Assembly.

21. The respondent further submitted that the complaint was dismissed by the IEBC Dispute Resolution Committee for lack of merit and that the appellant in this case was disqualified for not complying with the law and regulations.

22. It is evident from the Decision by the Dispute Resolution Committee that the appellant was accorded an opportunity to present her nomination papers and that she did present the same but not within timelines set by the respondent; and that when the verification of the names on the appellant's list of supporters, it was found that she only secured 139 signatures. The appellant did not dispute and could not dispute this, granted that Regulation 43(2)(a) and (d) of the Elections (General) Regulations, 2012 mandates the respondent to verify such lists with a view of ensuring that the supporters so listed are registered voters in the constituency/electoral area in question.

23. Further to the foregoing, Regulation 43(2)(g) of the Elections (General) Regulations recognizes that a Returning Officer can reject nomination papers on the ground that the documents were time-barred. Section 2 of the Elections Act provides that the time for nomination is between 8. 00 a.m. and 4. 00 p.m. of the date specified; and the Court takes judicial notice that the specified dates for nomination of Independent Candidates for the position of Member of Parliament was set by the respondent to be Sunday May 29, 2022 and Tuesday May 31, 2022 per paragraph (k) of the Gazette Notice No.430 (Vol.CXXIV-No.14) of 20th Janauary 2022. The appellant conceded that after being given an opportunity to avail additional names of supporters, she did submit her nomination papers but only secured 139 signatures contrary to the provisions of article 99 (1) (c)(i) of the Constitution which provides for at least 1000 registered voters in the constituency for the respondent to clear her. Accordingly, granted the thrust of the appellant's case, I would be of the view that the appeal has no merit and therefore lends itself dismissal.

24. In the end, this appeal is found to be without merit. The same is ordered dismissed. In the circumstances of this dispute, a fair order on costs is to order which I hereby do, that each party should bear its own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 12TH DAY OF JULY, 2022. .............................J. K. SERGONJUDGEIn the presence of:......................... for the Appellant......................... for the Respondent