[2022] KEHC 10047 (KLR)

Jubase v Independent Electoral & Boundaries Commission & another (Constitutional Petition 13B of 2022) [2022] KEHC 10047 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10047 (KLR)

Republic of Kenya

In the High Court at Garissa

Constitutional Petition 13B of 2022

A Ali-Aroni, J

July 21, 2022

IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ARTICLES 2(1), (5) AND (6), (3) (1) AND (B) AND (C), 20(1) AND (2), 21(1) AND (3), 22(1) AND (2), 23(3), 27(1), (2), (4) AND (6), 28, 38(2), (A) AND (3), (C), (41) AND (2), 54 (1), (A), 193, 165 (3), (B) AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 28, 38 (2) (A) AND (3) (C), 47 (1) AND (2), 54 (1) (A), 193 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF SECTIONS 22, 23 (1), 33, 74 OF THE ELECTIONS ACT NO. 24 OF 2011 AND IN THE MATTER OF REGULATION 18 OF THE ELECTIONS (GENERAL) REGULATIONS 2012

Between

Asha Abdullahi Jubase

Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Wafula Wanyonyi Chebukati

2nd Respondent

Judgment

1. The Constitution of Kenya 2010 is rated amongst the most progressive Constitutions in the world. It instils values and principles of good governance. It commands Principles of equality & equity amongst all citizens. It outlaws discrimination and provides where necessary for affirmative action, a positive principle meant to uplift and improve the of group of persons who have been historical marginalized.

2. The Constitution equally makes elaborate procedures of how the Electoral systems and processes are to be governed. It prescribes for statues that sets rules and regulations from the nomination of candidates to the culmination of elections, how pre- and post-elections disputes are to be conducted.

3. This court has been called upon to consider and review a decision arrived at by the Dispute Resolution Committee of the 1st Respondent the Independent Electoral and Boundaries Commission in a pre- election dispute. It is against the above background that this Court will Consider the matter before it.

4. On the 4th of June 2022 the 1st Respondent, Returning Officer Wajir Constituency upon receipt of documents for purposes of clearance for nomination cleared the Petitioner, Asha Abdullahi Jubase a political party nominee to vie for the position of Member of County Assembly for the Habaswein Ward in Wajir South Constituency.

5. Abdirazak Osman, (Complainant) thereafter filed a complaint with the Dispute Resolution Committee(DRC) of the 1st Respondent, being Complaint No. 137 of 2022 against the Returning Officer, Wajir Constituency and the Petitioner challenging the clearance of the Petitioner (who was then 2nd Respondent) to run for the seat of Member of County Assembly for Habaswein Ward, Wajir South Constituency on Umoja Summit Party.

6. The basis of the allegation before the DRC was that the nomination of the Petitioner was irregular as she had not resign from public service in accordance with Section 43(5) of the Election Act at the point she sought for clearance from the IEBC..

7. The complaint went through the hearing process, and at the point of delivery of the committee’s ruling slated for 17th June 2022 the complainant’s counsel sought for more time to file fresh evidence that they wished to produce. Counsel made an oral application.

8. DRC adjourned the matter on account of that application and received further evidence. It thereafter slated the ruling for 20th June 2022 on which day counsel for the complainant filed a notice of withdrawal of the complaint, which in essence arrested the decision of DRC.

9. Despite the above scenario DRC delivered a ruling on the 23rd of June, 2022, wherein the DRC accepted the withdrawal of the complaint and rightly taking note that the withdrawal was filed under the wrong order of the Civil Procedure Rules, being Order 25 Rule 1 as the matter had been set for hearing and awaited their decision and that the withdrawal ought to have been under Order 25 Rule 2.

10. The DRC in allowing the withdrawal considered that sub Rule 2 of the Order allows court to permit withdrawal upon such terms as to costs, the filing of any other suit, and otherwise is just.

11. The DRC having allowed the withdrawal and armed with the “powers” to make or give such other terms as are just, arrived at the following decision;“Paragraph 26…. the withdrawal of the complaint herein is not only mischievous but also an abuse of the committee’s process and resources. The complainant alluded evidence to the effect that the 2nd Respondent herein had not resigned as per the requirement of section 43(5) of the Election Act, which evidence the committee verified to be true. To attempt to withdraw the complaint at this juncture can be considered as collusion by the parties herein to hoodwink the committee and it is by extension an invitation to the committee to overlook or disregard issues that are central nerve of the Committee and IEBC’s responsibility both in Law & Conduct.Paragraph 27. Where the committee determines that the withdrawal of the complaint shall amount to derrogation of justice or is an abuse of the process as is in the present case, then the committee can set terms of withdrawal of the suit. The committee’s decision to impose terms on withdrawal of a complaint are justifiable under Order 25 Rule 2(2) of the Civil Procedure Rules as set out in Shadrack Sila Muthama V Kebaso Wycliffe Maengwe (2021) eKLR the court held as follows“…...However, under Order 25 Rule 2(2), withdrawal of a suit requires permission of the court and the withdrawal may be subject to terms that the court considers just, including payment of costs or filing of any other suit.”

12. Based on the above findings the committee allowed withdrawal with the following (“terms”) ordersa)The decision of the Returning Officer, Wajir South Constituency clearing and registering the 2nd Respondent, Asha Abdullahi Jubase, for nomination to vie for the position of Member of County Assembly in Habaswein Ward, Wajir South Constituency, Wajir County is hereby revoked.b)The Returning Officer, Wajir South Constituency is hereby directed to de-register the 2nd Respondent, Asha Abdullahi Jubase, herein as a candidate for nomination to the position of Member of County Assembly, Wajir County immediately and in any event not later than 48 hours from the date of issuance of this decision.c)Order (b) herein notwithstanding, a declaration does and is hereby issued that the 2nd Respondent, Asha Abdullahi Jubase, is not and shall not be gazette by the Independent Electoral & Boundaries Commission as a candidate to vie for the position of Member of County Assembly in Habaswein Ward, Wajir South Constituency.d)No order as to costs.

13. It is the said “terms” or call them orders of DRC that triggered the Constitutional Petition now before this court by Asha Abdullahi Jubase, dated 24th June 2022 where she cites manifest illegal, unlawful, unreasonable, irrational, illogical and unjustifiable and violation of Articles 2(1) 5, 6, 3(1), 10(1), 12(b) (c), 20(1) & (2), 22(1) & (3), 22(1) & (2), 23(3), 27(1) (2), 4&6, 28, 38(2) 9A), 3(C), 47(1) & (2), 54(1) (a), 56(b), 193, 165 (3) (b) and 260 of The Constitution 2010

14. It is the Petitioner’s case that the decision made by the DRC of the 1st Respondent constitutes an illegal exercise of discretion based on unlawful collusion and/or pressure from third parties contrary to statute, public policy and the law.

15. Further the said decision lacked professional objectivity to act, and demonstrated Wednesbury unreasonableness, irrationality, impropriety, bad faith and improper motive.And that the decision was manifestly unfair, unjust, arbitrary, and punitive.

16. It is further urged by the Petitioner that with the withdrawal the Complaint the committee seized to have jurisdiction and the orders issued were null and void ab initio.

17. The Petitioner therefore seeks for remedies as follows; -i.An Order of Certiorariagainst the Respondents quashing the decision of the Dispute Resolution Committee to revoke the decision of the Returning Officer, Wajir South Constituency clearing and registering the Petitioner for nomination to vie for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party.ii.An Orderof Certiorariagainst the Respondents quashing the decision of the Dispute Resolution Committee to de-register the Petitioner as a candidate for nomination for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party within 48 hours.iii.An Order of Mandamuscompelling the Respondents to accept the withdrawal of the complaint lodged by the complainant on 22nd June 2022. iv.An Order of Mandamuscompelling the Respondents to gazette the Petitioner as a candidate for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party.v.An Order to compel IEBC to process the Petitioners application and include her in the ballot.vi.Any other orders the Honourable Court will deem fit to Grantvii.Costs of this petition with interest to be awarded to the Petitioner.

18. The Petition was opposed by the 1st Respondent, the IEBC by way of a replying affidavit. The Chairman of IEBC Mr. Wafula Wanyonyi Chebukati though sued as the 2nd Respondent did not enter appearance.

19. Mr. Chrispine Owiye, the Director Legal and Public Affairs of the 1st Respondent deposed in his affidavit dated 13th July 2022 that the 1st Respondent received a complaint from Abdirizak Osman against a Returning Officer, Wajir South Constituency & Asha Abdullahi Jubase the Petitioner wherein the complainant challenged the clearance of the Petitioner to run for the position of Member of County Assembly in Habaswein Ward, Wajir South Constituency under Umoja Summit Party.

20. Further, he deposed that the complaint received was due to alleged irregular nomination since the Petitioner had not resigned from public service in line with section 43(5) of the Election Act.

21. He further stated, that though the complaint was withdrawn the committee rightly and legally elected to continue with the complaint as it deemed the withdrawal not only as being mischievous but also an abuse of the committee’s processes and resolutions. The Committee looked at the evidence adduced and verified the evidence in its possession further and deemed the withdrawal of the complaint as a collusion between the parties and an attempt to hoodwink the Committee and an invitation for the committee to disregard crucial issues raised.

22. He further averred that Order 25 rule (2) (2) of the Civil Procedure allowed the Committee to set terms for the withdrawal which terms the Committee considers just and applicable in the circumstances to meet the ends of justice.

23. Further he contended that the complaint had laid rebuttal evidence regarding the suitability of the Petitioner to run for the position and touched a requirement and the said evidence on record has not been rebutted as the Petitioner remains an employee of Wajir South National Government Constituency Development Committee Fund.

24. The matter before this court proceeded by way of submissions. Due to the urgency involved the Court directed that the interlocutory application and the Petition be heard together.

Submissions Petitioner’s Submissions* 25. Submissions were presented orally by both Dr. Khaminwa and Mr. Munyambu.

26. Mr. Munyambu who started of the Petitioner’s submission informed the Court that the DRC at the point of withdrawal made indications that their arrested decision would have been in favour of the Petitioner.

27. He informed the court further that the first decision having been arrested the DRC went ahead to deliver a 2nd decision. He went on to submit that withdrawal meant the Complaint came to an end. The Complainant ceased being one and the DRC ceased to have jurisdiction over the complaint, it became functus officio unless another fresh complaint was instituted and any decision that they arrived at after the withdrawal was null and void abi nitio. Counsel referred to the case of Raisa Sultana Begam v Abdul Qadir & Others, Nguruman Ltd vs Shompole Group Ranch & Another [2014] eKLR.

28. Further he urged that the Petitioner is a young woman who ought to be given an opportunity to represent the Wajir people in accordance with Article 27 of the Constitution.

29. He urged the court to grant the orders sought as Article 23 of the Constitution empowers the Court to issue the orders sought.

The Respondent’s Submissions 30. The Respondent’s Counsel filed written submissions and highlighted the same at the time of hearing. Counsel identified three issues for determination.(a)Whether the decision can be rendered where a complaint has been withdrawn.(b)Whether the Petitioner could legally be cleared to run for the position of Member of County Assembly.(c)What are the appropriate orders to be issued by the court.

31. Counsel relied on case of Nicholas Kiptoo Arap Korir Salat Vs IEBC & 7 Others Supreme Court Application No. 16 of 2014 to urge that the committee was legally right in allowing the withdrawal of the complaint and further imposing such terms as are necessary in the circumstances.

32. In answer to the second issue whether the Petitioner could be cleared to vie it was contended that the withdrawal was mischievous, an abuse of the committee’s process and resources as the complainant had placed evidence before the committee that disqualified the Petitioner to vie under Section 43(5) of the Evidence Act.

33. Further it was contended that since the Committee is an organ of the 1st Respondent established under the Constitution both are required by the Constitution and the Law to defend and uphold the Constitution and Electoral Laws.

34. The court was urged to dismiss the Petition for lack of merit.

Analysis and Determination. 35. Having carefully considered the Petition, the Application, the Affidavits on record, submissions and case law cited the court is of the view that the issues for determination are;i.The fate of a suit where a notice of withdrawal is filed; can a decision be rendered, or orders be issued therein after such withdrawal ?ii.Whether the court can grant the orders of certiorari and mandamus against the decision of the Dispute Resolution Mechanisms as sought?iii.Whether the court can compel the 1st Respondents to gazette the Petitioner as a candidate for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party and to ensure the Petitioner’s name is in the ballot paper in the circumstances of the case.

36. Article 22(1) of the Constitution as read with Article 165(3) (b) & (6) gives Jurisdiction to the High Court to determine issues before it. Parties seem to agree on the Jurisdiction of the court on this aspect.Article 22 (1) of the Constitution provides that““every person has the right to institute proceedings claiming that a Right or Fundamental Freedom in the Bill of Rights have been denied, violated, infringed or is being threatened.”Article 165 of the Constitution provides; -(6)The High Court has supervisory jurisdiction over the subordinate courts and over any persons, body or authority exercising a judicial or quasi-judicial function but not over a superior court.(7)For purposes of Clause 6, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in Clause (6) and make any order or give any direction it considers appropriate to.”

37. In the case of Mohamed Abdi Mohamud vs Ahmed Abdullahi Mohamed & 3 Other; Ahmed Ali Mukhtar (I.P) [2019] eKLR the supreme court stated;-“(v)the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, even after the determination of an election petition;[80]On the basis of the foregoing reasoning, we find and hold that both the Election Court and the Court of Appeal wrongly assumed jurisdiction, in determining what was clearly a pre-election dispute, regarding the academic qualifications of the petitioner. However, as our principle number (v) (above) stipulates, a petitioner’s inaction does not prevent him from presenting the dispute for resolution before the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution.[81]This Principle as read with Principle (vi) means that at any time, the judicial process is never closed. It also preserves the authority of the Constitution, in the event of the occurrence of certain “tragedies”, to which our attention was drawn. For example, what would happen if a person who is not a citizen of Kenya were to slip through the IEBC vetting process and become elected M.P, Governor, or even President" Or what happens if a person who is not qualified as provided for by the Constitution, slips through the IEBC vetting process and gets elected" The answer lies in the two principles. In the one instance, where the tragedy was not known, the Election Court assumes jurisdiction. In the other instance, where the tragedy was known, the High Court takes over under Article 165 to preserve the Constitution. This interpretative framework is not only holistic and purposive, it is also forward looking. After all, whatever can slip through the IEBC vetting process, can also slip through the Election Court petition processes! At the end of the day, the constitutional pre-election dispute resolution mandate of the IEBC is respected, the efficacy of the Election Court is preserved, and above all, the authority of the Constitution is intact!”

38. Without having to rehash the DRC decision delivered on the 23rd of June, 2020 and the facts as laid out at the beginning of this judgement it would be important to restate the law and procedure of withdrawal or discontinuation of suits including legal precedents.

39. Order 25 Rule 1 of theCivil Procedure Rules stipulate that“At any time before setting down the suit for hearing, the Plaintiff may by notice on all parties, wholly discontinue his suit against all or any of the Defendants or may withdraw any part of his claims, and such is continuous or with withdrawal shall not be a defence to any subsequent act.”Order 25 Rule 2 thereof provides“where a suit has been set down it may be discontinued, or any part of the claims withdrawn, upon the filing of a written consent signed by all the parties. Where the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claims upon such terms as to costs, the filing of any other suit and otherwise as are just” (emphasize added)

40. Though the complainant sent a notice of withdrawal pursuant to Order 25 Rule 1 the DRC rightly noted that the applicable Rule is Rule 2 as the complaint had been set down for hearing and was awaiting a decision.DRC further noted that under Rule 2 they were to allow withdrawal and upon such terms were deemed just.

41. The issue herein is not on the withdrawal that was allowed but on the decision arrived at and orders issued after the DRC allowed the withdrawal .

42. In the case of Bejing Industrial Designing and Research Institute and Lagoon Development Civil Appeal No. 1 of 2015, the Court of Appeal considered the import of Order 25 Rule 2 and had this to say.“As a general proposition, the right of a party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria in Abayomi Babatunde v. Pan Atlantic Shipping & Transport Agencies Ltd & others,SC 154/2002 identified those circumstances to include where:(i)a plaintiff realizes the weakness of his claim in the light of the defence put up by the defendant,(ii)a plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date,(iii)where by abandoning the prosecution of the case, the plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or(iv)a plaintiff may possibly retain the right to re-litigate the claim at a more auspicious time if necessary.In the above case Justice Ibrahim Tanko Mohammad also addressed his mind, albeit in the context of the law of Nigeria, to the right of a party to withdraw his suit, and made observations, which we think are pertinent to the central issue before us. The learned judge stated that a plaintiff has a right to discontinue his action if he so chooses because the filing of the action does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation. In addition, a court of law cannot force an unwilling plaintiff to continue with an action because, even if the court insists that he should continue, he may well refuse to tender evidence or take any further steps in the action.”

43. In the same case the Court of Appeal made reference to the decision of our own Supreme Court which adopted a similar approach of not inhibiting a withdrawal in the case of John Ochanda vs Telkom Kenya Ltd Supreme Court Application No. 25 of 2014. The Supreme Court referring to Rule 19 of the Supreme Court rules which allows a party to withdraw any proceedings with leave of court where our own Ibrahim SC J stated;“I do hold the view that a prospective Appellant is at liberty to withdrawal a Notice of Appeal at any time before the Appeal has been lodged and any further steps taken. No proceedings have commenced strictly. I am also of the view that just like under the Civil Procedure Rules or Court of Appeal Rules, the right to withdraw or discontinue proceedings or withdraw a Notice of Appeal respectively ought to be allowed as a matter of right subject to any issue of costs which can be claimed by the respondents, if any.In this particular case, there cannot be any reason for inter partes hearing and the matter can proceed ex parte as the right to withdraw cannot be taken away.”

44. The Court of Appeal also made reference to the case of Nicholas Kiptoo Arap Korir Salat vIEBC & Others Supreme Court Application No. 16 of 2014 where the Supreme Court reiterated that;“A party’s right to withdraw a matter before the court cannot be taken away. A court cannot deny a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”

45. From the above cases the much the court can do in a withdrawal of case situation is to order costs be paid to the opposite side should it be appropriate.

46. Having considered the above the court will turn to the circumstances of this case and pose a question whether a court on its own motion can proceed and make a determination the withdrawal notwithstanding and give adverse orders when there is no longer a suit before it?

47. In Pil Kenya Limited vs Joseph Oppong Civil Case No. 102 of 2007 the Court of Appeal stated;“The effect of withdrawal of a notice of motion is to terminate the suit of course subject to costs to the opposite side.” “The question I pose is of withdrawal of suit in existence in which orders other than orders on costs could be made either for or against the appellant….”Having come to the foregoing conclusion, it is my view that the superior court was in grave error to continue with the case without first ascertaining whether the notice of withdrawal of suit was valid or not.”

48. Smt Raisa Sultana Begam & others vs. Abdul Qadir & others AIR (1966 ALL 318)In the said case the C.J Desai stated“….no act is required to be done by the court to complete or effectuate a plaintiff’s withdrawal of his suit. There is no provision for any act to be done on the suit by the court for making the withdrawal effective or even after the withdrawal. It is not even required to pass any order. Withdrawal of suit is itself its end. A plaintiff withdrawing his suit is liable for such costs as the court may award; so the court is empowered to pass an order only in respect of costs.”(emphasize added)

49. Further the Indian Authority of Raisa the court stated;-“It stands to reason that when on withdrawal the plaintiff ceased to be a party and the court ceased to have jurisdiction over his suit and thus becomes fuctus officio nothing but can invest the court with jurisdiction over it.” (emphasize added)

50. In the case of Nguruman Limited vs Shompole Group Ranch & Another [2014] eKLR the Court of Appeal stated that an order made where a court has no jurisdiction becomes null and void. The court stated“I think the court had no jurisdiction to grant the orders it did and to that extent such orders were void.”

51. Further in Macjoy vs United African Limited (1961) 3 All E.R 1169 at 1172 Lord Denning L.J stated“"If any act is void, then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so.”

52. The sum total of the above analysis is that the DRC apart from considering the issues of costs, it should have downed its tools on once it recorded the withdrawal as it had no part to play thereafter. It could not interfere with the decision of the plaintiff neither did not have further jurisdiction to proceed further with the matter no matter the evidence before them. It had become fuctus officio.

53. It was argued that the DRC of the Constitution and together with 1st Respondent had a duty to uphold and protect the constitution, now that it had adverse information and hence to make the orders.

54. Article 88(1) establishes the 1st Respondent proceeds provides for its mandate.Article 88(4)(e) 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;Article 88(f)“Registration of candidates for elections.”Article 88(j)““the development of a code of conduct for candidates and parties contesting election.”And Section 74 of the Election Act reiterates the provisions of Article 88 (4) (e) of the Constitution on dispute resolution.

55. Under the rules of procedure for settlement of disputes, disputes arising from registration of persons as voters, nomination of candidates, violation of the code of electoral conduct any other election related complaint shall be guided by the rules and procedure of settlement of disputes.

56. The object of the rules is to provide a procedure and mechanisms for expeditious, efficient, lawful, reasonable and procedurally for settlement of disputes including those contemplated under Article 88(e) of the Constitution and Section 74 of the Act.

57. The DRC’s mandate quite clearly is limited to hearing disputes and cannot usurp the powers of the 1st Respondent or purport to carry out its Constitutional mandate. So that in the context of this matter as as soon as the case was withdrawn , there was no longer a dispute before it. It had no duty or obligation to act beyond its mandate of dispute resolution. At best the committee could outside the case and administratively pass any information of interest to the 1st Respondent for its further action.

58. Before concluding The court observed the gender card being played by counsel for the Petitioner while at the same time referring the court to Article 27 of the Constitution that provides that every person is equal before the law and has the right to equal protection and equal Benefit before the law.

59. Article 27(3) reminds us that women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.

60. The Petitioner is a young and educated woman who is serving as an officer in the National Constituency Development Fund. She attempted to enter politics which means the avenue was open for her to vie for the seat of Member of County Assembly Habaswein ward despite her age and gender as provided for by the Constitution.

61. Every right has an obligation. Article 193(1) sets the qualification for election as a Member of County Assembly. Article 193 (2) disqualifies one from being legible if one is a State officer or public officer.There is a requirement for public officers to resign 6 months in advance under section 43(5) of the Elections Act.

62. A perusal the proceedings before the DRC confirms that the Petitioner had not presented her resignation letter to the Returning Officer. Indeed, on record there was none. She was still in employment. Further when filing her self-declaration form from Ethics and Anti-corruption Commission the Petitioner left the space for employment details blank. She did not disclose her employment status.

63. Counsel stated in submissions that the Petitioner had resigned. The court asked for the resignation letter. A copy of the same was availed to this Court, even though is it not too late to present it at this point? Secondly how authentic is in the circumstances of this matter. The record of DRC indicate that the Petitioner had informed the Returning officer that she was an employee of non-governmental organization. The Petitioner did not negate the statement of the returning officer. It appears that the letter of resignation was an afterthought.

64. The Constitution in Article 3 provides that Every person has an obligation to respect, uphold and defend the Constitution; this covers all Kenyans both men and women, young and old.

65. At the end the court arrives at the following disposition; -i.An Order of Certiorari do issue quashing the decision of the Dispute Resolution Committee to quash the decision of the Returning Officer, Wajir South Constituency clearing and nominating the Petitioner to vie for the position of Member of County Assembly in Habaswein Ward.ii.An Order of Certiorari do issue quashing the decision of the Dispute Resolution Committee to de-register the Petitioner as as a candidate to vie for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party within 48 hours.iii.Based on the evidence the court declines to issue and order of mandamus directing or compelling the 1st Respondent to gazette the Petitioner for the position of Member of County Assembly in Habaswein Ward.iv.The court declines to compel the 1st Respondent to include the Petitioner on the ballot paper for the position of Member of County Assembly in Habaswein Ward.v.above notwithstanding the 1st Respondent be at liberty to take any further and/or appropriate action based on the available information on the candidacy of the Petitioner.vi.Each party to bear their own costs.

DATED DELIVERED AND SIGNED IN GARISSA THIS 21ST DAY OF JULY, 2022…………………………ALI-ARONIJUDGE