[2017] KEHC 9107 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

ELECTION PETITION APPEAL NO.14 OF 2017

ISAAC ALUOCH POLO ALUOCHIER..........................................................................APPELLANT

VERSUS

UHURU MUIGAI KENYATTA………………………...…………………...……..1STRESPONDENT

RAILA AMOLO ODINGA…….............................................................................2NDRESPONDENT

JOSEPH WILLIAM NTHIGA NYAGAH………………..……………….......…..3RDRESPONDENT

WILLIAM SAMOEL RUTO…………………………….……………….......…..4THRESPONDENT

STEPHEN KALONZO MUSYOKA…………………………………….........….5THRESPONDENT

DALMAS OTIENO ANYANGO………………………………………........….....6THRESPONDENT

JUBILEE PARTY………………………………………………………..........….7THRESPONDENT

ORANGE DEMOCRATIC MOVEMENT………………………………….......…8THRESPONDENT

FORUM FOR THE RESTORATION OF DEMOCRACY KENYA..................….9THRESPONDENT

KENYA AFRICAN NATIONAL UNION……………...........……...................…10THRESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION..............11THRESPONDENT

JUDGMENT

The Appellant, Isaac Aluoch Polo Aluochier lodged a complaint before the Independent Electoral and Boundaries Commission Nomination Disputes Resolution Committee seeking to have the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents barred from contesting as candidates of their respective political parties (and in respect of the 6th Respondent, as an independent candidate) on essentially the grounds that the six Respondents had not met the constitutional moral and ethical threshold to enable the 11th Respondent accept their nominations as candidates properly qualified to contest in the election scheduled for 8th August 2017. The Appellant also sought the disqualification of all candidates presented by the 7th, 8th, 9th and 10th Respondent political parties, because in his view, the said political parties had failed to abide by the constitutional and statutory imperatives that required the said political parties to hold periodic elections every five (5) years to determine its office bearers. The Appellant argued that since the 7th – 10th Respondent political parties had not conducted any elections to determine its office bearers as required by the law, they could not be considered to be political parties capable of offering candidates for the various elective seats that will be contested in the forthcoming general elections.

The Appellant’s complaint was dismissed by the said committee. In the material part of the decision, in respect of the 1st – 5th Respondents, the committee stated thus:

“This committee takes cognizance of the fact that Article 73 of the Constitution, Leadership and Integrity Chapter requires that all state officers and public officers as well as those who vie for political seats including the President must meet the ethical, moral and integrity morals of the law. However, this committee further notes that the issues raised by the complainant ought to be filed with the Ethics and Anti-Corruption Commission and or the High Court as well as other bodies responsible for implementation of moral and ethical requirements of the law.”

In respect of the 6th Respondent, the committee stated that:

“The committee only deals with issues that arise from nomination of candidates, particularly those issues raised against the Returning Officers. Complaints such as the one raised by the complainant herein should be raised in other forums.”

In respect of the 7th and 10th Respondents, the committee, inter alia, held that:

“The primary mandate of this committee is donated by sec 74 of the Elections Act and which is primarily the resolution dispute related to or arising from the nominations. The jurisdiction to interpret any provisions of the Constitution is not a mandate of this committee.”

The Appellant was aggrieved by these decisions and duly filed an appeal to this court. In the appeal, the Appellant faulted the committee for failing to assume jurisdiction and exercise its mandate as provided by Constitution. The Appellant argued in extenso the alleged breaches of the moral and ethical standards by the 1st - 6th Respondents. He also questioned the legal competence of the 7th – 10th Respondents to offer candidates in the forthcoming elections. The Appellant served the Respondents to appear before court. None of the Respondents save for the 6th Respondent appeared before the court. This court was satisfied that all the Respondents were properly served hence its decision to hear the appeal. The 6th Respondent’s counsel Mr. Ng’ani submitted that this court did not have jurisdiction to entertain the appeal because the issue raised by the Appellant in this appeal were issues which the committee did not have jurisdiction to deal with. He urged the court to dismiss the appeal on the question of jurisdiction with costs to the 6th Respondent.

This court has carefully considered the rival submission made before it. In any case that is presented before the court, the issue that the court must first address before it hears the case is the question whether it has jurisdiction to hear the case. As was held in the landmark case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 per Nyarangi, JA:

“By jurisdiction is meant the authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake both of these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.......Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

In the present appeal, the Appellant is appealing against a decision of the Independent Electoral and Boundaries Commission Nomination Disputes Resolution Committee which declined to assume jurisdiction in respect of the matters that the Appellant raised before it. The committee was of the view that the issues raised by the Appellant were issues which ought to be raised before other forums or the High Court as mandated by the Constitution and statute. There is no doubt that the Appellant is challenging the candidature of the 1st – 6th Respondents and the competence of the 7th – 10th Respondents to offer candidates to contest the various seats that are on offer during the 8th August 2017 general elections.

This court has carefully evaluated the arguments presented before the court on the question of jurisdiction. The committee heard the dispute presented to it in exercise of its mandate as provided for under Article 88(4)(e) of the Constitutionwhich provides that:

“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.”

The literal interpretation of that Article of the Constitution implies that the Electoral Commission’s mandate in hearing election disputes is restricted to nomination disputes that do not raise any other legal or constitutional questions. In the considered opinion of this court, the Electoral Commission’s mandate is circumscribed to determining whether a candidate was validly nominated to contest in the forthcoming general elections. The Electoral Commission does not have mandate to inquire into questions such as the moral or ethical qualification of a candidate when the Constitution and statute created independent constitutional commissions, such as the Ethics and Anti-Corruption Commission to deal and address such questions. Further, if a party is aggrieved by the manner in which a political party is conducting its affairs, such party is at liberty to lodge a complaint before the Political Parties Dispute Tribunal provided it fits the mandate specified under Section 40 of the Political Parties Act. All other disputes must be presented to the High Court which has unlimited jurisdiction under Article 165(3) of the Constitution to hear such claims. A five-Judge Bench in International Centre for Policy and Conflict & 5 Others –vs- The Hon. Attorney General & 4 Others [2013] eKLR held inter alia, that where the Constitution creates bodies or commissions to implement certain aspects or mandates in the Constitution, then the first port of call for anyone who is aggrieved by the particular aspect or mandate specified by the Constitution is that body created by theConstitution.

In the present appeal, the issues raised by the Appellant before the committee were issues that committee did not have jurisdiction to hear or consider. Similarly too, the Appellant cannot raise the very same issues before this appellate court because, in that capacity, this court has no jurisdiction to entertain the issues raised by the Appellant. In the premises therefore, this court upholds the objection by the 6th Respondent on the question of the jurisdiction of this court. The appeal cannot be allowed because the Independent Electoral and Boundaries Commission’s Nomination Disputes Resolution Committee correctly interpreted its mandate and declined to hear the Appellant. The Appeal is hereby dismissed but with no orders as to costs. It is so ordered.

DATED AT NAIROBI THIS 22ND DAY OF JUNE 2017

L. KIMARU

JUDGE