[2017] KEHC 1400 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

ELECTION PETITION NUMBER 1 OF 2017

IN THE MATTER OF ARTICLE 87(2) OF THE CONSTITUTION OFKENYA 2010

AND

IN THE MATTER OF THE ELECTIONS ACT NUMBER 24 OF 2011

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

AND

IN THE MATTER OF THE ELECTION FOR GOVERNOR FOR TURKANA COUNTY

JOHN MUNYES KIYONGA.................................................................................PETITIONER

VERSUS

JOSEPHAT KOLI NANOK.......................................................................1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION....2ND RESPONDENT

GEORGE OYUGI.......................................................................................3RD RESPONDENT

R U L I N G

John Munyes Kiyonga was a candidate for the seat or Governor Turkana County in the Elections held on 8th August, 2017. Josephat Koli Nanokthe Respondent was also a candidate and was declared by the 2nd Respondent IEBC as the duly elected Governor. The Petitioner, John Munyes filed this petition to challenge the outcome of the elections. The 1stRespondent Josephat Nanok then filed this application dated 2nd October, 2017 brought under article 180(2) and 193(2) of the Constitution of Kenya, 2010 and the provisions of the Elections Act, 2012 seeking orders: -

1) That this application be certified urgent and herd ex-parte in the first instance and service of the same be dispensed with.

2) That the Petition herein dated 4th September, 2017 and filed herein on 5th September, 2017 and all other subsequent pleadings filed for and/or on behalf of the Petitioner in this suit be and are hereby dismissed and/or struck out entirely.

3) That the costs of this application and the petition herein be borne by the Petitioner.

The application is based on the grounds that: -

a) That although the Petitioner was cleared by the 2ndRespondent and gazette to vie for the position of governor Turkana County, he is and was constitutionally disqualified to vie for the said seat pursuant to Article 180(2) of the Constitution of Kenya, amongst other constitutional provisions.

b) That this is because at the point of nomination to contest for Governor Turkana County Government, the Petitioner was still serving in the Kenyan Parliament as the duly elected Senate representative for the County of Turkana.

c) That, indeed, the Petitioner has affirmed in his affidavit in support of the Petition herein sworn on 4th September, 2017 and filed on 5th September, 2017 that he was a member of the senate for the year 2013 up to 8th August, 2017 when the gubernatorial election for Turkana country was conducted.

d) That, however, the Constitution expressly disqualified and/or disqualified the Petitioner for vying for the position of the Governor of Turkana while he was still the setting Senator of Turkana County, which term ended at midnight 8th August, 2017 as per Article 102 of the Constitution.

e) That as such, the Petitioner was ab-initio constitutionally in eligible for being nominated and therefore could not stand for election as the Governor of Turkana County in the contested gubernatorial election of Turkana County.

f) That, Article 180(2) of the Constitution provides that to be qualified for election as County Governor, a person must be eligible for election as a Member of the County Assembly.

g) That Article 193(2) (a) of the Constitution further disqualified state officer, or any other public officer from being elected as a Governor, except for a Member of County Assembly.

h) That in the circumstances, a person who is disqualified from vying for the position of Member of County assembly is as a result therefore inevitably ineligible to contest gubernatorial elections.

i) That, therefore the Petitioner being as State Officer even during the election held on 8th August, 2017, he and and/or was constitutionally barred from contesting in the said election for Governor Turkana County.

j) That the Constitution could not have intended that a person who did not meet its requirements should be permitted to be an electoral candidate, particularly when that person has been so expressly disqualified by the Constitution.

k) That, in the circumstances, the Petitioner lacks locus standi to file and prosecute the petition herein and the same should be summarily dismissed and/or struck out.

l) That indeed, the Petitioner’s candidacy having been premised on an unconstitutional Act, this hourable court cannot make any determinations whatsoever the petitioner’s favour.

The application is supported by the supporting affidavit of Josephat Koli Nanok sworn on 2nd day of October,2017 in which he depones that he lawfully and validly declared to have emerged victorious over the Petitioner in the 8th August 2017, gubernatorial election, ‘the Petitioner’s candidacy was and is still unconstitutional and unlawful, That although the Petitioner was cleared by the 2nd Respondent and gazetted to vie for the position of Governor Turkana County, he is and was constitutionally disqualified to vie for the said seat pursuant to Article 180(2) of the Constitution of Kenya, amongst other Constitutional provisions.

He depones further that because at the point of nomination to contest for Governor Turkana County Government, the Petitioner was still serving in the Kenyan parliament as the duly elected Senator Representative for the County of Turkana. That the constitution expressly disqualifies and/or disqualified the Petitioner from vying for the position of the Governor of Turkana County while he was still the sitting Senator of Turkana County, which term ended at midnight 8th August, 2017 as per Article 102 of the Constitution. That in the circumstances, the Petitioner lacks locus standi to file and prosecute the Petition herein and the same should be summarily dismissed and/or struck out.

The application is opposed by the Petitioner, John Munyes Kinyonga who filed a replying affidavit sworn on 13th October, 2017. The Petitioner depones that the 1st Respondent’s application is misconceived, ill-advised and patently ill-founded on the following grounds: -

a) That an objection regarding my nomination to vie for the position of Governor, county Government of Turkana should have been lodged before the Independent Electoral and Boundaries Dispute Resolution Committee within the stipulated period and should not be b elatedly raised in this honorable court.

b) That the 1st Respondent never challenged my nomination to vie for the position of governor or to be elected for that position during the last elections held on 8th August, 2017.

c) That the plea now made in an afterthought and a delaying tactic intended to confuse the fundamental issue which require to be determined namely the shambolic elections, intimidation of voters and commission of electoral offences by the 1st Respondent.

The Petitioner depones further that he was serving as a Senator during the last Parliament, Senate was adjourned sine die injure, 2017 on the understanding that the term of the Senate was to expire on 7th August, 2017. Thus Senators are entitled to their emoluments up to 7th August, 2017 when the term of Senate ended. That as at 8th August, 2017, he had no legal impediment that would have obstructed his election as Governor since his term as a Senator had expired prior thereto.

By consent of the counsel for the parties, this application was to be disposed of by way of written submission with options to highlight if need be. Both parties filed their respective submission and highlighted on the same.

Mr. Nyachoti for the Applicant submitted that the Petitioner John Munyes, was a Senator for Turkana County which term by law ended on 8th August, 2017. He submitted that Independent Electoral and Boundaries Commission cleared him to vie for the gubernatorial seat for Turkana County on 8th August, 207 while the Petitioner was still serving as a Senator. That the Petitioner was not duly qualified to be a candidate in the 8th August, 2017 gubernatorial election since his candidature ran against the grain of the constitution, particularly Articles 180(2) and 193(2) (a) thereof and therefore his candidacy was null and void ab-anitio effectively disentitling him the locus standi to present the petition as currently filed.

Mr. Nyachoti further submits that Article 180(2) of the Constitution sets the baseline for eligibility for an election of the County Governor by providing that: “to be eligible for election as a county governor, a person must be eligible for election as a member of the county assembly.” That the same read together with Article 193 which sets out the qualifications and/or eligibility qualifications for election as a member of county assembly and by extension the Governor. Sub-article (2) (a) specifically provides that a person is disqualified from being elected a member of County Assembly if the person “is a state officer, or other public officer, other than a member of the County Assembly.”

Counsel submitted that Article 260 of the Constitution defines a state officer to include a Member of Parliament. That the Petitioner, as at 8th August, 2017 being a Senator and therefore, a member of parliament was a state officer and therefore disqualified to be a candidate for the office of the Governor for Turkana County or any other county.

He submits further that while the 2nd Respondent cleared the Petitioner’s candidacy, the same does not ratify the Petitioner’s candidacy’s since the same is ab-initio an illegality and unconstitutional. That the Supreme Court in Presidential Election No. 1 of 2017, Raila Odinga & Another Vs Independent Electoral and Boundaries Commission & 2 Others while quoting with approval the High Court decision in Karanja Kabaga Vs Joseph Kiuna Kariambegu Nganga & 2 Others (2013) eKLR. It held that an election is a process s in the following words of the majority at pages 224 – 226: -

“Elections are not events but processes. As Likoti, J.F. opines “[e]lections are not isolated events, but are part of a holistic process of democratic transition and good governance….”Incidentally, IEBC’s own Election Manual (Source Book) recognizes that an election is indeed a process.

There are many other authorities which speak to this proposition. In Kanhiyalal Omar v. R.K. Trivedi & Others and Union of India v. Association for Democratic Reforms & Another, the Supreme Court of India, for example, stated that the word ‘election’ is used in a wide sense to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. These stages include voter registration; political party and candidate registration; the allocation of state resources and access to media; campaign activities; and the vote, count, tabulation and declaration of results………”

He further submits that having established and sufficiently that the Petitioner was “not a candidate” for the purpose of the 8thAugust, 2017 gubernatorial election for Turkana County, he, therefore e lacks the requisite locus standi to prosecute the petition herein and the same should be dismissed with costs.

Finally counsel submitted that the sovereignty of the nation is in its fidelity to the constitution and rule of law.

M/s Ngania for the Petitioner submitted that this court does not have jurisdiction to handle a question of eligibility of a candidate in an election. Counsel submitted that any challenge to his nomination of the Petitioner by Jubilee Party and approval by the IEBC lies to the IEBC Dispute Resolution Mechanism as per the provision of Article 88 of the Constitution.

Counsel for the Petitioner further submitted that any challenge as to the nomination of the Petitioner by the Jubilee Party and the subsequent approval by the 2nd Respondent ought to have been raised in accordance with the provisions of Article 88(4) (e) of the Constitution which provides as follows: -

188 (4) (e) 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;

Counsel submits further that in pursuant to the above constitutional provision, Section 74 of the Elections Act and Section 4 (e) of the Independent Electoral and Boundaries Commission Act were enacted.

Section 74 of the Elections Act provides as follows: -

“(1) Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for 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.

(2) An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.

(3) Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.”

Counsel submitted that this being an Election court the issues for determination as are provided under Section 75(1) and 3 of the Elections Act which provides: -

(1) A question as to validity of an election of a county governor shall be determined by High Court within the county or nearest to the county.

(3) In any proceeding brought under this section, a court may grant appropriate relief, including—

(a) a declaration of whether or not the candidate whose election is questioned was validly elected;

(b) a declaration of which candidate was validly elected; or

(c) an order as to whether a fresh election will be held or not.”

Counsel submitted that the position for a Member of Parliament is an elective position which has a constitutional time line for when the same comes to an end. The position comes to an end as contemplated under Article 102 (1) of the Constitution. The intention of the drafters of the Constitution was that this being a representative position, the people to whom the person holding office on behalf is entitled to present them until another person is elected.

Counsel further submits that the Senate was adjourned sine die in June, 2017 on the understanding that the term of the Senate was to expire on 7th August, 2017. Thus Senators were entitled to their emoluments upto 7th August, 2017 when the term of Senate ended. As at 8th August, 2017, the Petitioner had no legal impediment that would have obstructed his election as Governor since his term as a Senator had expired prior thereto.

Counsel submits further that the issue if any that can be said to arise from the 1stRespondent’s motion is whether Article 193 (2) (a) of the Constitution is applicable to a member of Senate whose term of office is as stipulated under Article 102 of the Constitution as read together with Section 43 (6) of the Elections Act. Section 43(6) of the Election Act includes Members of Parliament in the list of elected officials who do not require to resign from office six months prior to the general elections.

From the application and the submission the issues that lends themselves for determination are: -

1) Whether this court has jurisdiction to entertain this application?

2) Whether a sitting Senator can validly be cleared to vie for a gubernatorial seat without first resigning his position 6 months to the election?

The issue raised by the M/s Ngania for the petition is that this court being an election court locked jurisdiction to entertain the issue of eligibility of the Petitioner to stand for elections a Governor. She submits that if the Applicant had any issue on eligibility that is an issue he ought to have raised with the IEBC who would activate its Dispute Resolution Mechanism provided for under Section 74 of the Elections Act. Counsel submitted that this being an election court the issues it should determine and reliefs available are as provided for by Section 75(1) and (3) of the Election Act; and determination in the eligibility of candidate is not one of the issues to be determined.

Mr. Nyachoti for the Applicant in response submitted that the question of eligibility goes to the core of an election petition and an election court which is of an election petition has jurisdiction to determine the same notwithstanding that the issue was not raised for resolution at the IEBC.

This court’s jurisdiction in matter of constitutional interpretation is told in Article 165 (2) &(3), of the Constitution which provides: -

“Article 165(2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.

(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal Court of Appeal.

High Court.

appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i) the question whether any law is inconsistent with or in contravention of this Constitution;

(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

(iv) a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.

The issue raised by Mr. Nyachoti in this application is whether the Petitioner was validly cleared for nomination to stand for election of the position of Governor. This he submits rightly in my view is a question which goes to the heart of the Petitioner’s eligibility to participate in the election of 8th August, 2017 as, therefore a preliminary issue which must be disposed of by this court. This court in my view being a High Court and an election petition’s court has jurisdiction to hear and determine the preliminary issue. The question of eligibility to participate in an election is crucial being a preliminary issue touching on a constitutional or legal point can be raised at any stage of the proceedings. This is more so in an election because the candidate must pass the eligibility test before being cleared. If for instance, the candidate is not a citizen or is an undischarged bankrupt or does not possess the necessary academic qualification, the election court cannot avoid to determine those issues even if the candidate was cleared by IEBC and the issue was never raised with IEBC at time of clearance. In my view, therefore, this court has the jurisdiction to hear and entertain this application.

On the second issue whether a Senator can view for election of Governor without first resigning his position. Reliance has been placed by Mr. Nyachoti in this application on the provisions of Article 180 of the Constitution which provides: -

“180. (1) The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.”

(2) To be eligible for election as county governor, a person must be eligible for election as a member of the county assembly.

Article 193 stipulates the qualifications for election as a member of County Assembly and provides: -

“193. (1) Unless disqualified under clause (2), a person is eligible for election as a member of a county assembly if the person—

(a) is registered as a voter;

(b) Satisfies any educational, moral and ethical requirements prescribed by this Constitution or an Act of Parliament; and

(c) is either—

(i) nominated by a political party; or Suspension of acounty government. Qualifications for election as member of county assembly.

(ii) an independent candidate supported by at least five hundred registered voters in the ward concerned.

(2) A person is disqualified from being elected a member of a county assembly if the person—

(a) is a State officer or other public officer, other than a member of the county assembly;

(b) has, at any time within the five years immediately before the date of election, held office as a member of the Independent Electoral and Boundaries Commission;

(c) has not been a citizen of Kenya for at least the ten years immediately preceding the date of election;

(d) is of unsound mind;

(e) is an undischarged bankrupt;

(f) is serving a sentence of imprisonment of at least six months; or

(g) has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six.

From the provisions above, a person is disqualified from contesting the post of Governor if he is under disqualifications provided. Of interest to this application is 193 (2) (a) which provides that a person is disqualified from being elected as a member of County Assembly if the person is a state officer or other public officer other that a Member of County Assembly. Mr. Nyachoti for the Applicant submits that the Petitioner in his position as a Senator was a state officer which is defined in Article 260 as

“State officer means a person holding a state office.”

State office means any of the following officers: -

State office” means any of the following offices—

(a) President;

(b) Deputy President;

(c) Cabinet Secretary;

(d) Member of Parliament;

(e) Judges and Magistrates;

(f) member of a commission to which Chapter Fifteen

applies;

(g) holder of an independent office to which Chapter Fifteen applies;

(h) member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government;

(i) Attorney-General;

(j) Director of Public Prosecutions;

(k) Secretary to the Cabinet;

(l) Principal Secretary;

(m) Chief of the Kenya Defence Forces;

(n) commander of a service of the Kenya Defence Forces;

(o) Director-General of the National Intelligence Service;

(p) Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or

(q) an office established and designated as a State office by national legislation;

A Member of Parliament is defined to include member of national Assembly and the Senate as per Article 93 (1) of the Constitution which provides: -

“93. (1) There is established a Parliament of Kenya, which shall consist of the National Assembly and the Senate."

It, therefore, follows from these provisions that the Petitioner having been a Senator was a Member of Parliament, Section 43 of the Elections Act which deals with participation in Elections by Public Officers provides that under Section 43, 5 and 5A of the Election Acts provides: -

“(5) A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election.

(5A) A public officer who intends to contest in a by-election under this Act shall resign from public office within seven days of the declaration of a vacancy.

Mr. Nyachoti for the Applicant/Respondent submits that though Section 43 would appear to allow participation in election of Members of parliament, the same has been subject of Constitutional interpretation by the courts and the provision declared as unconstitutional. In particular he referred to the Nairobi High Court petition No. 2 of 2012 and Kericho ELRC Petition No. 1 of 2017. Erick Cheruiyot & Others Vs IEBC & Others to buttress his submission.

M/s Ngania for the Respondent in response submitted that the members of parliament are exempted by Section 43 of the Elections Act; she submits that the decision in Cheruiyot case actually supports their position that the Petitioner need not resign his position as that the term of Parliament under article 102 expires on the date of the next general election.

In Charles Omanga &Another Vs IEBC& Others, NBI High Court Petition No. 2 of 2012, the issues for determination were: -

“(1) Whether the provisions of Section 43(5) of the Election Act, 2011 requiring the resignation of State officers seven (7) months prior to the elections while at the same time excluding other categories of State of public officers is discriminatory, accords an unfair advantage to some, breaches the requirement for fairness, equality and proportionality and therefore unconstitutional

(2) Whether the requirement under Section 43(5) of the Constitution impacts or affects the exercise of the right of the Kenyan citizens to a free and fair elections where the electorate including the Petitioner can fully and without let or hindrance exercise the political rights under Article 38 of the Constitution.

(3) Whether the 1st Respondent herein; the Independent Electoral and Boundaries Commission can properly exercise its mandate as an impartial arbiter or referee of the elections as envisaged under Articles 81 and 88(4) of the Constitution under the circumstances in which some of the prospective candidates deemed to be in public service are required to resign seven (7) months prior to the elections.”

After analyzing the law, Lenaola J, (as he then was) stated: -

“24. It is their common argument that public officers need to be restricted in their political activities so that while in office they should not be seen to be engaged in partisan political activities and which may impede the objective discharge of their duties. That the requirement that they should resign from public office seven months before the date of elections is therefore reasonable and Section 43(5) and (6) are not in contravention of the Constitution.

25. I have considered the rival arguments and it does not take much persuasion for me to agree with the Respondents. I say so, with respect to the Petitioners and the Interested Parties, because the purpose of the two Sections are obvious to me. For the Government at the national and devolved levels to function during an election period, certain functions cannot be suspended including those of the President and County Governor, otherwise there would be chaos. How would the government function without the Head of State and other such Officers? The same Constitution in any event also differentiates between elected officials and other public officials because the former have specific time frames within which they must serve – invariably for five years.

Mr. Nyachoti’s argument if I understood him correctly is that Section 43(5) Elections Act having been declared unconstitutional, that the provisions of the Constitution in Article 193 Which provides that a person is disqualified from standing for an election if he is a state officer stands. M/s Ngania in her part contends that the exceptions in Section 43 particularly in respect of the President, Deputy President and Member of Parliament are plausible as they provide continuity of governor and state operations even when electoral process has commenced.

In this applicator the salient issue which is not contested is when the term of Parliament does expires. Article 102 of the Constitution provides: -

“Article 102 (1)The term of each House of Parliament expires on the date of the next general election.”

It is therefore, not in contention that the Petitioner ceased to be a Member of Parliament in the midnight of 7th August, 2017. If the provisions of Section 43 were not there, then he should have resigned by 7th January, 2017 and the same would apply to all the Senators and members of National Assembly. This interpretation would in my view lead to an absurdity in as much as it would mean that there would be no President, (unless he is not standing for re-election), Members of Parliament, Governors or County Assembly Members for 7 months prior to an election.

In appreciating the provisions of Section 43 of the Elections Act, one has to make a distinction between two classes of state officers: -

a) The public officer employed or in the paid service of the Government, whose term is not limited except by specific provisions of retirement or termination of contracts and

b) The elected representatives as Member of Parliament or country assemblies whose term of service is determined by the Constitution and which is pegged on elections.

The first category are public officers who are not supposed to engage in politics and are subject to the principles of public service. They are required to be a political because they need to discharge their public duties without being influenced by partisan political interest. This view is shared by Lenaola J (as he then was who in Charles Omanga & Others Vs IEBC & Others stated: -

“It is their common argument that public officers need to be restricted in their political activities so that while in office they should not be seen to be engaged in partisan political activities and which may impede the objective discharge of their duties. That the requirement that they should resign from public office seven months before the date of elections is therefore reasonable and Section 43(5) and (6) are not in contravention of the Constitution.”

This is the category that requires to resign 7 months before general election so that they can prepare for their election challenge and avoid situations where their public duties would be influenced by the political objectives he would want to pursue as a politician. It is also meant to maintain the political neutrality of state officers in execution of their public duties; need to ensure that they do not interfere with the elective processes, using their positions as public servants and maintain the dignity of the public officers, prevent the deployment of public resources in elections campaigns. In my view Section 43(5) as it relates to these officers is reasonable, rational and Constitutional.

The second category of the state officers are the elected cadre, who achieve their position in competitive elections. Though they are state officers, their duties are political in nature and they represents a constituency. Their terms of service is limited to or determined by elections. These include Members of Parliament and County Assemblies whose term is provided for under Article 102 to terminate at the next general elections. This is the cadre referred to by Section 5 (6) to include the President, Deputy President, a member of parliament, County Governor, Deputy County Governor and a member of County Assembly.

This is the cadre that the Petitioner as a Senator then falls in. this cadre of Public Officers are specifically excepted for the provisions of Section 43 (5) which states: -

(5) A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election.

(5A) A public officer who intends to contest in a by-election under this Act shall resign from public office within seven days of the declaration of a vacancy.

(6) This section shall not apply to—

(a) the President;

(b) deleted by Act No. 36 of 2016, s. 16(b);

(c) the Deputy President;

(d) a member of Parliament;

(e) a county governor;

(f) a deputy county governor;

(g) a member of a county assembly.

The elected state officers man both the National in the case of President and Deputy President and the members of parliament and County for Governor, Deputy Governor and members of the County Assembly. These officers are concerned in running both the National and County Government even during the period of Elections. Any requirement that they cease being so will lead to the collapse of the two levels of Government and total anarchy. Section 43 (5) and (6) was designed to prevent that anarchy and maintain constitutional order. These provisions in my view cannot be unconstitutional. I, therefore do find that the provisions of Section 43 of the Elections Act amplifies the constitutional provisions of Article 190 and that it is not inconsistent with it but a derivative of the same.

I, therefore, find that the Petitioner was exempted from the provisions of Section 43(5) and that at the time he was cleared by IEBC to stand for position of Governor he was eligible to be nominated to view for position of Governor Turkana County. The application dated 2nd October, 2017 is hereby dismissed.

Dated, signed and delivered at Lodwar this 2nd day of November, 2017.

………………………………..

S N RIECHI

JUDGE