[2022] KEHC 9883 (KLR)

James v Independent Electoral and Boundary Commission (Constitutional Petition E313 of 2022) [2022] KEHC 9883 (KLR) (Constitutional and Human Rights) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9883 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E313 of 2022

AC Mrima, J

July 19, 2022

Between

Losikany James

Petitioner

and

Independent Electoral and Boundary Commission

Respondent

Ruling

Introduction 1. The Petitioner herein, Losikany James, born on 1st January, 1990, is 32 years old and, therefore, a Youth as defined by Article 260 of the Constitution.

2. He applied to his political party for consideration for nomination to the County Assembly of Narok to represent the Youth as a special interest group in accordance with Article 177(1)(c) of the Constitution.

3. The Respondent is a constitutional Commission established under Article 88 of the Constitution. The Respondent is also responsible for, among others, the regulation of the process by which parties nominate candidates for elections and the monitoring of compliance with the legislation relating to nomination of candidates by parties.

The Petition: 4. The Petition is dated 23rd June, 2022. It was supported by the Petitioner’s affidavit sworn on even date. At the same time, the Petitioner filed an application by way of a Notice of Motion seeking some conservatory orders.

5. In the main, the Petition prayed for the following orders: -I.A Declaration be issued that the impugned part of paragraph (f), to wit, "For avoidance of doubt the nominee must be between 18-34 years of age for the term of Parliament" under General Requirements for Party Lists, in the said Gazette Notice No. 6378 published in the Kenya Gazette Vol. CXXIV-No. 101 on 3 June, 2022, is unconstitutional, null and void ab initio.II.An order restraining the Respondent from rejecting Party Lists for failure to meet the requirement of being between 18-34 years of age for the term of Parliament as contained in the impugned part of paragraph (I) of Gazette Notice No. 6378 published in the Kenya Gazette Vol. CXXIV-No. 101 on 3 June, 2022. III.An order of Certiorari be issued Colling into this court. and quashing the impugned part of paragraph (f), to wit. "For avoidance of doubt the nominee must be between 18-34 years of age for the term of Parliament" under General Requirements for Party Lists, in the said Gazette Notice No. 6378 published in the Kenya Gazette Vol. CXXIV­No. 101 on 3rd June, 2022. IV.Costs and interests thereof of this Petition.V.Such further, other and consequential orders as this Honourable Court may deem fit to make.

6. In response to the Petition and the application, the Respondent filed Grounds of Opposition and a Preliminary Objection evenly dated 28th June, 2022.

The Preliminary Objection: 7. The Preliminary Objection was fronted on the following grounds: -1. That the Petition and Application be dismissed for want of jurisdiction as the Application and by extension this court are in effect usurping the Respondents and the Interested Party's independence, jurisdiction and mandate under Articles 82, 88, 90, 97(1)(c), 98(1)(c), 177(1)(c) and 249(2) (a) and (b) of the Constitution, 2010, Sections 34 to 37 and 109 of the Elections Act, 2011 and Regulation 54 of the Elections (General) Regulations, 2012, Elections (Party Primaries and Party Lists) Regulation, 2017 to accept or reject the Petitioner's nomination;2. That the Petition and the Application be dismissed as they seek this court to interfere and direct Respondent on how to carry out their mandate under the constitution and the Elections Act;3. That the Petition and the Application be dismissed for want of jurisdiction by dint of Article 88(4)(d) and (e) of the Constitution, 2010 as read with Section 74 of the Elections Act, 2011 and the Rules of Procedure on Settlement of Disputes that mandates and grants the IEBC with authority and jurisdiction to resolve disputes relating to or arising from nominations for the forthcoming general elections;4. That the Petition and the Application be dismissed for want of jurisdiction by dint of Article 87 of the Constitution, 2010 and Sections 39, 40 and 41 of the Political Parties Act, 2011 that establishes and grants the original jurisdiction to the Political Parties Disputes Tribunal, on the Petitioner's grievances and set this court as an appellate court; and5. That the Petition and the Application be dismissed for want jurisdiction and prematurity as the Petitioner has neither invoked nor exhausted intra-political party dispute resolution mechanisms as established by Section 9 and Paragraph 23 of Schedule 2 of the Political Parties Act, 2011 and Regulation 27 of the Elections (Party Primaries and Party Lists) Regulation, 2017.

8. On 30th June, 2022, this Court directed that the Notice of Preliminary Objection be heard by way of written submissions, and be determined in the first instance.

Respondent’s case on the objection: 9. In advancing the objection, the Respondent submitted that the Petition and application ought to be dismissed for want of jurisdiction on the part of this Court.

10. It was submitted that the Petition is premature on three fronts: Firstly, that nominations of persons to fill interest groups positions are yet to be conducted by political party. Secondly, that the Independent Electoral and Boundary Commission (hereinafter referred to as “the IEBC”) is yet to receive any nominees from political parties for the interest groups; and thirdly, the IEBC is yet to make any decision to reject or accept any such nominee.

11. Further, the Respondent contended that even where the Petitioner had a claim on the nomination, he ought to present his claim in other three forums before approaching Court. The three forums are: Intra-party dispute resolution mechanism, Political Parties Dispute Tribunal (hereinafter referred to as “the PPDT”) and the IEBC Dispute Resolution Committee (hereinafter referred to as ‘the DRC’).

12. The Respondent maintained that the Constitution and the electoral laws have vested the IEBC, Political Parties and the PPDT with the mandate and jurisdiction to determine the issues raised by the Petitioner which entails disputes arising from nominations.

13. The Respondent submitted that in determining whether a Court has jurisdiction in a matter, regard is made to the Constitution, statute law and principles laid out in judicial precedents. Reliance was placed on the Court of Appeal in Eliud Wafula Maelo -v- Ministry of Agriculture & 3 Others [2016] eKLR.

14. The Respondent asserted that the objection was founded in law. That, the issues raised therein are pure points of law and that they go to the root of the Court's jurisdiction. It was further asserted that the interrogation of the legal provisions will result to the collapse of the Petition and application. Further, the Court was reminded that jurisdiction is everything and when a Court lacks it in a matter, it must down its tools. The decision in I.E.B.C -v- Jane Cheperenger & 2 Others [2015] eKLR was relied upon.

15. The Respondent also submitted that the jurisdiction of the of the PPDT is provided for under Section 40 of the Political Parties Act; while Section 41 thereof provides for an appeal from the decision of the PPDT to the High Court and subsequently to the Court of Appeal.

16. It was the Respondent’s submission that the Political Parties Act and the Elections (Party Primaries and Party Lists) Regulation, 2017, compliments Section 40(2) of the Elections Act.

17. The Respondent argued that the law provides for internal party dispute resolution mechanism and that the Petitioner ought to have strictly laid his claim before his political party internal dispute resolution mechanism with an appeal to the PPDT.

18. The Respondent averred that this Court has supervisory jurisdiction over the PPDT under Article 165(6) of the Constitution. The decisions in Linus Kamunyo Muchina -v- Speaker Embu County Assembly Majority leader- Embu County Assembly [2016] eKLR, Godfrey Murithi Muchiri & 4 Others v Speaker, Tharaka Nithi County Assembly & 2 others [2020] eKLR, Albeity Hassan Abdalla-v- Independent Electoral and Boundaries Commission (IEBC), and Mohammed Adan Ali, Anuar Loitiptip & Wiper Democratic Movement [2018] eKLR were relied on in support the submission.

19. Regarding the IEBC, the Respondent posited that the Commission is also responsible for conducting and supervising nominations to special seats. That Sections 34 to 37 of the Elections Act provides for the nomination process of party list members.

20. The Respondent in urging this Court to sustain the objection submitted that Section 109 of the Elections Act grants the IEBC powers to enact regulations generally for the efficient performance of mandate under provisions of the Act. Thus, the IEBC formulated and gazetted the Elections (General) Regulations, 2012 (Regulations 2012) and Elections (Party Primaries and Party Lists) Regulation, 2017. It was appointed out that Regulation 54 of Elections (General) Regulations, 2012 provides for submission of political party lists for allocation of special seats and that the IEBC is empowered to reject a nominee from the list.

21. It was passionately pleaded that this Court should not accept invitation by the Petitioner in this matter as the converse would amount to usurping the IEBC’s mandate. The decisions in Eric Kyalo Mutua-v- Wiper Democratic Movement-Kenya & another [2017] eKLR, Fredrick Odhiambo Oyugi-Orange Democratic Movement& 2 others [2017] eKLR, Tom Dola & 2 others - Chairman, National Land Commission & 5 others [2020] eKLR, Fredrick Odhiambo Oyugi -v- Orange Democratic Movement & 2 others [2017] eKLR, and Sammy Ndung'u Waity -v- Independent Electoral & Boundaries Commission & 3 others [2019] eKLR, were relied upon.

The Petitioner’s case on the objection: 22. In opposing the objection, the Petitioner submitted that, in the first instance, it ought to be noted that the objection was premised on contested and/or yet to be ascertained set of facts. The Petitioner averred that a Preliminary Objection must raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. That, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696.

23. The Petitioner maintains that the set of facts submitted by the Respondent are not pleaded, and are unascertained. It was argued that the facts pleaded by the Petitioner and those submitted by the Respondent are incompatible and cannot form the basis of the Respondent’s preliminary objection.

24. Secondly, it was submitted that the Petitioner has not declared a dispute against his political party capable of being adjudicated by the PPDT and referred to Stephen Asura Ochieng vs. ODM (2011) eKLR.

25. The Petitioner maintained that he is challenging the constitutionality and legality of the disclaimer contained at paragraph (f) of the impugned Gazette Notice No. 6378 issued by the Respondent, to wit, ‘For avoidance of doubt the nominee must be between 18-34 years of age for the term of Parliament.’ Therefore, that this is not a matter that can be adjudicated upon by the PPDT.

26. Thirdly, the Petitioner posited that the DRC has no jurisdiction to determine the issues of constitutionality raised in the Petitioner’s application and Petition. That those issues can only be determined by this Court. It was further posited that the challenge before this Court was on the constitutionality, legality and validity of the disclaimer at paragraph (f) of the impugned Gazette Notice No. 6378 issued by the Respondent, but not a challenge on the IEBC on whether it has rejected the nomination of the Petitioner or not.

27. Fourth, that the Petitioner has properly invoked the jurisdiction of this Court. The Court is approached on the basis of appreciable apprehension that the Respondent has threatened the fundamental right to nomination by the Respondent’s disclaimer contained at paragraph (f) of the impugned Gazette Notice No. 6378.

28. The Petitioner submitted that Article 23(2) of the Constitution grants this Honourable Court jurisdiction to issue the reliefs sought by the Petitioner against the Respondent and that neither the PPDT nor the DRC has the power to issue such orders against the Respondent. The decision in Jaset Enterprise Limited v Director General National Transport and Safety Authority [2017] eKLR was relied upon.

29. On the basis of the foregoing, the Petitioner urged this Court to dismiss the objection with costs.

Analysis: 30. From the objection, the parties’ pleadings, depositions and submissions, two issues arise for determination. They are: -i.Whether the Preliminary Objection is sustainable in law.ii.Whether the Court has jurisdiction over the instant dispute.

31. On the first issue, the celebrated case of Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696, captures the law on preliminary objections.

32. Building on the said Mukisa Biscuit case, the High Court in John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR held that: -The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on a point of law.

33. Notably, Ojwang, J (as he then was) in Oraro v Mbaja (2005) KLR 141 where after quoting the statement of Law, JA. in the Mukisa Biscuits case (supra) went on to state that: -Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence....

34. In the instant matter, the Preliminary Objection mainly challenges the jurisdiction of the Court to hear and determine this matter on the basis of the Constitution and the law. The objection also has the potential of disposing the entire matter if successful. The objection has, therefore, attained the threshold of a pure preliminary point of law and it ought to be considered on its merit.

35. I will now consider whether the objection ought to be sustained; that is the second issue.

36. As the objection is based on the concept of jurisdiction, this Court remembers the precise manner in which the Supreme Court in a judgment in Petition No. 11 (E008) of 2022 Hon. Mike Mbuvi Sonko vs The Clerk, County Assembly of Nairobi City & 11 Others which was delivered on 15th July, 2022 aptly captured the aspect of jurisdiction in the following words: -8. In Nyarangi JA’s time-honoured words in the Owners of the Motor Vessel “Lillian S” v. Caltex Oil Kenya Limited [1989] KLR 1, which were originally penned by the United States of America Supreme Court in 1915 in the case of McDonald v. Mabee, 243 U.S. 90,91 (1915), without jurisdiction a court has no power and must down tools in respect of the matter in question.

37. Jurisdiction is, hence, so central in judicial proceedings such that a Court acting without jurisdiction is acting in vain. All it engages in is nullity. (See the Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR).

38. Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR is relied upon.

39. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLRstated as follows: -A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

40. And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -(44)…. a party cannot through its pleadings confer jurisdiction to a court when none exists. … Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...

41. The dispute in this matter is fairly straight-forward. The Petitioner challenges a decision of the Respondent whose effect is that any Youth who shall be above the age of 34 years within the term of the next Parliament ought not to be nominated to represent the Youth as a special interest group.

42. The matter deals with the interpretation of the Constitution which is the sole duty of the High Court courtesy of Article 165(3)(d) of the Constitution. Indeed, the issue raised is so pertinent as it borders on the political rights of many Kenyans who at the moment are below the age of 34 years, but will be over that age in the term of the next Parliament. It is a germane issue calling for this Court’s interpretation of the requisite constitutional provisions.

43. In such a scenario, the PPDT and the DRC have no powers to interpret the Constitution. The much they can do, as quasi-judicial entities, is to apply the Constitution.

44. This Court believes it has said enough to dispose of the objection. There is no doubt that the objection is misplaced.

45. Consequently, the Notice of Preliminary Objection dated 28th June, 2022 be and is hereby dismissed with costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 19TH DAY OF JULY, 2022. A. C. MRIMAJUDGE