[2013] KEHC 5193 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

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JANET NDAGO EKUMBO MBETE .............................................................................PETITIONER

AND

HON ATTORNEY GENERAL .............................................................................1ST RESPONDENT

THE INDEPENDENT ELECTORALAND BOUNDARIES COMMISSION .....2ND RESPONDENT

KENYA NATIONAL EXAMINATIONS COUNCIL.............................................3RD RESPONDENT

UNIVERSITY OF NAIROBI .................................................................................4TH RESPONDENT

AND

HON HASSAN ALI JOHO .........................................................................1ST INTERESTED PARTY

HAZEL KATANA .......................................................................................2ND INTERESTED PARTY

JUDGMENT

1. After hearing the petition on 31st January 2013, we dismissed it with no order as to costs.

2. By a petition dated 29th January 2013,

(a)That a declaration be issued to declare that the Hon Hassan Ali Joho and Hazel Katana do not meet the basic academic qualification of holding a degree from a university recognised in Kenya to vie for the positions of Governor and Deputy Governor Seats of Mombasa County.

(b)That a declaration be issued to declare that the nomination of Hon Hassan Ali Joho and/or Hazel Katana to vie for the positions of Governor and Deputy Governor respectively for Mombasa County is null and void ab initio on account of the two candidates lacking valid qualification of a degree from a university recognised in Kenya.

(c)That a declaration be issued to declare that the nomination of Hon Hassan Ali Joho and Hazel Katana to contest for the positions of Governor and Deputy Governor seats of Mombasa County will violet the petitioner’s rights under Article 38 of the Constitution to be respected by academically qualified persons.

(d)That the costs of this petition be borne by the respondents.

3. In addition to the petition, the petitioner filed a Chamber Summons dated 29th January 2013 which sought the following reliefs;

(3) That the Honourable Court be pleased to order the 3rd and 4th respondents whether jointly and or severally to furnish the applicant with certified true copies of the following information and/or documents.

(i)Certified copies of the examination result slips in relation to Hassan Ali Joho and Hazel Katana for the Kenya Certificate of Secondary Education (KCSE).

(ii)Certified copies of transcripts for Hassan Ali Joho for any degree course he may have enrolled for at the University of Nairobi.

(iii)Certified confirmation of the graduation of Hassan Ali Joho for any degree course he may have enrolled for at the University of Nairobi.

(iv)Certified confirmation of the degree constitution held by Hazel Katana.

(4) That the Court be pleased to give any directions and further orders necessary to secure the applicant’s right to access to information secured by Article 35 of the Constitution of Kenya, 2010.

4. We heard the parties and in our view, the petition lacks merit for several reasons. First, the petition is an attack on the educational qualifications of the interested parties. As parties are required by law to qualify for consideration to be nominated, the returning officer receiving the papers will be required to address himself or herself on the issues raised by the petitioners. Secondly, if any objection is lodged with IEBC, it constitutes a nomination dispute which IEBC is empowered to resolve under Article 88(4)(e) of the Constitution. Thirdly, the issue of qualification can always be raised even after elections as it does with the qualification of candidates.

5. In the circumstances, we found no merit in the petition and consequently rejected the Chamber Summons dated 29th January 2013 as it is anchored on the petition.

DatedandDelivered at Nairobithis 5th February 2013

D.S. MAJANJA

JUDGE

W. KORIR

JUDGE

G. V. ODUNGA

JUDGE