[2017] KEHC 1993 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA PETITION NO. 14 OF 2017

KALTUMA ABDULAHIM MAALIM………………...………….PETITIONER

VS

THE SPEAKER-COUNTY ASSEMBLY OF WAJIR……1ST RESPONDENT

THE CLERK-COUNTY ASSEMBLY OF WAJIR……....2ND RESPONDENT

COUNTY ASSEMBLY OF WAJIR………………….…...3RD RESPONDENT

SAADIA AHMED MUMIN……………………………...…4TH RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES BOUNDARIES COMMISSION.....1ST INTERESTED PARTY

KENYA AFRICAN NATIONAL UNION.................2ND INTERESTED PARTY

RULING

1. The petitioner initially filed these proceedings in Nairobi through a petition filed at Milimani Courts on 12th September 2017. Filed on the same date, was a Notice of Motion under Certificate of Urgency for conservatory orders to restrain the 4th respondent SAADIA AHMED MUMIN from continuing to undertake any official duties as a Member of the County Assembly of Wajir.

2. The court in Nairobi certified the matter as urgent but ordered that the file be transmitted to Garissa High Court for further progress, which was done.

3. After the petition and application were served, the 1st, 2nd and 3rd respondents through their counsel Yunis, Osman and Mwiti Advocates filed a Notice of Preliminary Objection on 9th October 2017 in the following terms:-

“That the Honourable Court lacks the jurisdiction to hear and determine the petition and application dated 12th September 2012 as the issues therein are within the jurisdiction of the election court.”

4. On 19th October 2017, the 1st respondent through counsel Ogle &Company also filed a Notice of Preliminary objection in the following terms:-

(a) This court does not have jurisdiction to hear and determine the petitioner’s chambers summons applications dated 12th September 2017, the Notice of Motion dated 12th September 2017 and the petition dated 12th September 2017 in view of the provisions of section 75(1A) of the Election Act 2011. The said applications and petition are frivolous vexatious and an abuse of the court process as the procedure for removal of a member of County Assembly and/or otherwise affecting the membership of the County Assembly has not been invoked by the petitioners which is through an election petition and not a constitution petition.

(b) That there is a similar case SAADIA AHMED MUMIN-VS-THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND 3 OTHERS, Election Petition Number 12 of 2017 wherein the 4th respondent is the petitioner and the 1st and 2nd interested parties, the petitioner and 2nd respondent are mentioned as respondents and the same issues being canvassed. The election court being the proper forum the petition or can ventilate the alleged constitutional violations in the said election petition.

(c) That for the foregoing reasons the petitioner’s applications and petition all dated 12th September 2017 are incompetent and legally untenable and ought to be dismissed.

5. By consent, parties counsel filed written filed written submissions to canvass the preliminary objection, which they also highlighted in open court.

6. I have considered the preliminary objections raised, the submissions of counsel for the parties and authorities cited to me.

7. There is no dispute that this matter arises from the Gazettement of the 4th respondent and the petitioner as Kenya African National Union party nominated member of the County Assembly of Wajir.

8. There is no dispute that an election petition was filed by the 4th respondent at Milimani Nairobi when her initial Gazettement by Independent Electoral and Boundaries Commission was replaced by the Gazettement of the petitioner herein.

9. It is not in dispute that the Clerk of the County Assembly of Wajir swore in the 4th respondent as nominated MCA instead of the petitioner herein.

10. The issue before me is whether this court has jurisdiction to entertain this matter which was filed as a constitutional petition rather than an election petition.

11. In this country election litigations are governed by specific provision of the Constitution of Kenya 2010, as well as statutory provisions under the Elections Act 2011. They are litigations of a special nature and are so treated.

12. In the case of MOSES MWICIGI & 14 OTHER-VS-THE IEBC AND 5 OTHERS-petition 1 of 2015, the Supreme Court stated as follows:-

105. It is clear from the foregoing provisions that the allocation of nomination seats by the IEBC is a time bound process that starts with the proportional determination of the number of the seats done to each political party. On that basis, IEBC then ‘designates’ or draws from the allocated list the number of nominees required to join the County Assembly. To ‘designate’ or ‘draw from’ entails the act of selecting from the list provided by the political party.

It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for special seat, including the act of Gazettement of the nominees’ names by the IEBC, as an integral part of the election process.

106. The Gazette Notice in this case, signifies the completion of the “election through nomination”, and finalizes the process of constituting the Assembly in question. On the other hand, and ‘election by registered voters’ as was held in the Joho case, is in principles, completed by the issuance of Form 38, which terminates the returning officer’s mandate, and shifts any issue as to the validity of the results from the IEBC to the election court.

107. It is therefore clear that the publication of the Gazette notice marks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts the consequential dispute to the election courts. The Gazette Notice also serves to notify the public of those who have been “elected”: to serve as nominated members of a County Assembly.

13. I have highlighted the above position taken by the Supreme Court of Kenya in detail deliberately, as the dispute herein relates to the swearing in of the 4th respondent someone who was previously Gazetted by IEBC, and later the same IEBC Gazetted the petitioner as the nominee to the County Assembly, before the swearing in ceremony.

14. The Clerk of the Wajir County did not swear a stranger, but one of the two Gazetted nominees. As such, in line with the reasoning above, this is a election matter, as it arose from the nomination Gazetted by the IEBC, and any dispute arising therefrom is for the election court and not the constitutional court. It follows that this court has no jurisdiction to entertain the matter.

15. In the case of the OWNERS OF MOTOR VESSEL “LILIAN S”-VS-CALTEX OIL KENYA LTD.(1989) KLR1, Nyarangi JA stated as follows:-

“Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence and a court downs its tools in respect of the matter before it, the moment it holds the opinion that is it without jurisdiction”

16. This matter not having been brought to this court as an election petition, but a constitutional petition, where filing fees paid were not for an election petition, and no deposit for costs having been paid, and this court not having been Gazetted to hear the matter as an election court as required by written law, the court has to down its tools and proceed no further.

17. Having found that this court lacks jurisdiction to hear this matter, I down my tools and strike out the petition herein and all applications filed by the petitioner, with costs to the respondents and interested parties.

It is so ordered.

Dated and delivered at Garissa on 8th November, 2017.

GEORGE DULU

JUDGE