[2022] KEHC 3284 (KLR)

Kanya v Attorney General Republic of Kenya & 2 others (Constitutional Petition E085 of 2022) [2022] KEHC 3284 (KLR) (Constitutional and Human Rights) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3284 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E085 of 2022

HI Ong'udi, J

June 14, 2022

IN THE MATTER OF INTERPRETATION OF THE CONSTITUTION PREAMBLE ACKNOWLEDGING THE SUPREMACY OF THE ALMIGHTY GOD OF ALL CREATION AND HIGH COURT ARTICLE 165 AND IN THE MATTER OF BILL OF RIGHTS ARTICLE 19 IN THE MATTER OF PRINCIPLES OF NATIONAL SECURITY ARTICLES 238 AND NATIONAL SECURITY ORGANS ARTICLE 239

Between

Joe Stanley Kamau B. Kanya

Petitioner

and

Attorney General Republic of Kenya

1st Respondent

Registrar of Political Parties

2nd Respondent

Independent Electoral & BoundariesCommission

3rd Respondent

Judgment

1. The petition before this court is dated February 24, 2022. It is supported by the petitioner’s affidavit sworn on even date, plus many annextures. He seeks for the following orders;i.Interpretation, activation, implementation and application of the constitutional provisions entrenching the supremacy of God in the constitution be given the force of law by way of this honorable court’s declarations and parliament enacting law to the effect that God has taken over Kenya for good. New Dawn for Kenya & Prophetic destiny effective September 8, 2022. ii.That 8th September be declared a public holiday for repentance, prayer and thanksgiving to God.iii.That civic education based on Disciples University International and Apostle Dr. Joe Kamani’s books be facilitated by the relevant agencies in Kenyaiv.That action be taken to secure this achievement and various documents by way of legislation, constitutional amendment, and presidential protection.v.That the New dawn party of Kenya be registered immediately without any further delay and be allowed to participate fully in the forthcoming August 9, 2022general elections.vi.The New dawn party of Kenya (NDPK) being a direct outcome of the new dawn, should be recognized as God’s intervention in Kenya’s political leadership and nation at large.vii.The new dawn party of Kenya be allowed to participate fully in the August 9, 2022presidential election with a candidate on NDPK ticket.viii.That Apostle Dr. Joe Stanely Kamau be allowed to participate in the forthcoming August 9, 2022 Presidential election as a candidate on NDPK ticket.ix.That the Attorney General on behalf of the government of the republic of Kenya, Registrar, Office of Registrar of Political Parties and chairman Independent Electoral Boundaries Commission be served with the Orders the court may issue.x.That there be no award of costs since this is a matter of immense public interest.

2. In his supporting affidavit he has set out his academic and spiritual qualifications. It is his belief that God has spoken to him and ordained him as one of the presidential candidates through the New dawn party for Kenya.

3. The 1st respondent filed the following grounds of opposition dated March 29, 2022 by learned counsel Gracie M. Mutindi.i.By dint ofsection 3 of the Public Holidays Act cap 110 Laws of Kenya, the order sought to declare 8th September a public holiday violates the doctrine of separation of powers and cannot issue.ii.The participation of the petitioner as a candidate for election under the New Dawn Party of Kenya ticket or any other political party is not automatic but subject to compliance with the relevant constitutional and statutory requirements imposed upon any party seeking to vie for an elective post.iii.The registration of any association or group of persons as a political party is an exclusive statutory mandate of the 2nd respondent and the Honourable court is thus prohibited from directing the respondents on how to carry out their mandate.iv.By the petitioner’s own admission, his application for registration of New Dawn Party of Kenya as a political party is under review by the 2nd respondent.v.The registration of a political party and the participation by a candidate in vying for an elective positon are not automatic rights. The petitioner has failed to recognize and appreciate the provisions of the Constitution and statute law which mandate the 2nd and 3rd respondents to qualify or prescribe the requirements for election candidates.vi.Judicial intervention ought to be limited to acts that are manifestly in breach of the law or where the court is satisfied that the decision maker was manifestly unfair and was influenced by other considerations other than the law.vii.The petition neither identifies the provision (s) of the Constitution alleged to have been violated nor demonstrates how the respondents have violated the petitioner’s rights.viii.The petition does not raise any actionable cause of action capable of enforcement against the respondents.ix.The petition has failed to satisfy the threshold for a constitutional petition as set out in the case of Anarita Karimi Njeru v Republic 1 (1979) KLR 154 and enunciated by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance(2014) eKLR.x.The petition is frivolous, vexatious, incompetent and an abuse of the court process.

4. The 2nd respondent filed its response through a replying affidavit by Joy Onyango the compliance officer at 2nd respondent. She deponed that the broad mandate of the 2nd respondent is to register and regulate political parties and to administer the political parties’ fund. She referred to sections 5, 6, 7 & 33 of the Political Parties Act “The Act” and articles 91 & 92 of the Constitution.

5. She averred that the petitioner did apply for reservation of the party’s name vide the letter dated October 4, 2019 (JO-1) and the same was approved (JO-2) on October 16, 2019. That the 2nd respondent has duly guided the petitioner on every step to be undertaken for the purposes of registration. There were several omissions but he was safely guided to the end (Annextures JO – 3 – JO-6). It was not until 23rd July 2020 that the petitioner was able to lodge a formal application for provisional registration (JO – 7). Further corrections had to be made.

6. Finally the 2nd respondent gazetted the intended provisional registration of New dawn party of Kenya vide Gazette Notice No. 3192 of March 15, 2022 and published on March 22, 2022 (JO-8 – JO-10). It has not been possible to meet with the petitioner to finalise on the provisional registration process due to other emerging issues and this was communicated to him (JO-11).

7. The 3rd respondent filed a replying affidavit through Chrispine Owiye its director Legal and public affairs. He deponed that the petition is fatally defective, frivolous, misconceived and an abuse of the court process. It further raises no cause of action against the 3rd respondent.

8. He has outlined the 3rd respondent’s mandate under article 88 of Constitution of Kenya 2010. Besides conducting and supervising referenda and elections to any elective body, the 3rd respondent sets certain deadlines for purposes of running the elections in a seamless manner. The set timelines have a bearing on the elections and any changes would affect the date of elections which has been enshrined under article 136(2) of the Constitution.

9. He depones that candidates can contest the general election by nomination through a political party or as independent candidates. He further deponed that the 3rd respondent has no mandate in the registration of political parties. Further, being an independent commission the 3rd respondent cannot be compelled to conduct civic education based on books written by the petitioner. Finally the petitioner has not stated the constitutional violations against him by the 3rd respondent.

The Parties’ submissions 10. Parties made oral submissions to the petition. The petitioner submitted that failure to have the New dawn party for Kenya registered in the last 18 months had placed him at a disadvantage. He has not been able to recruit members, get funding and engage the media. There has been political mischief and misuse of public resources for campaigns. He asked the court to announce him as the God sent presidential candidate for Kenya, and his party should be registered.

11. Learned counsel Mr. Weche for the 1st respondent submitted that the petition had not raised any serious violations of the constitution. He referred to the cases of Anarita Karimi Njeru& Mumo Matemu. No provisions of the Constitution alleged to have been violated have been cited. That registration of parties is under the mandate of the 2nd respondent, who have said they are working on it. Counsel submits that the petitioner’s participation in the presidential elections is not automatic as there are requirements which he must comply with.

12. Learned counsel Mr. Wakoko for the 2nd respondent submitted that the New dawn party for Kenya has been provisionally registered, as there is a process to be adhered to before full registration. It’s his contention that the petitioner if dissatisfied with the 2nd respondent’s decision should have gone to the Political parties dispute Tribunal (PPDT) to challenge it and not file a constitutional petition. He therefore submits that the petitioner has not complied with the doctrine of exhaustion.

13. Mr. Beyo learned counsel for the 3rd respondent submitted placing reliance on the Constitution and Independent Electoral and Boundaries Commission Act (IEBC Act). He contends that the 2nd respondent’s mandate is anchored in the Constitution and the IEBC Act. That the duty of registration of parties is with the 2nd respondent. He otherwise aligned himself to the submissions by Mr. Wakoko for the 2nd respondent. Further that the petitioner had failed to follow the procedure of filing grievances.

Analysis and Interpretation 14. Having carefully considered the petition, responses, oral submissions and the law I find the issue falling for determination to be the jurisdictional issue. This court will have to determine whether the petition has met the precision test in order to invoke the jurisdiction of this court.

15. Rule 10 of the Constitution of Kenya (Protection for Rights & Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as “the Mutunga Rules”) provides for contents of petitions. It also gives guidance on the form in which a petition may be presented to the court.

16. The specificity and precision take was established by the High Court in the case of Anarita Karimi Njeru v Republic(1979) KLR 154. The test was stated thus:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

17. The Supreme Court of Kenya on Communications Commission for Kenya & 5 others v. Royal Media Services Limited & 5 others [2014] eKLR on the same element of specificity and precision stated thus:“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic [1979] KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have bene contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”

18. From the above decisions it is shown that petitions must be clear on what it is they are challenging. First of all there must be a nexus between the Constitution and the alleged violated right. The nexus must be precise, and clear.

19. A look at what has been filed as the petition dated February 24, 2022 does not make mention of any constitutional right that has been violated or how it has been violated. Instead the petitioner only states what his desires are in line with the New dawn party for Kenya. He expresses his wish to be a presidential candidate.

20. He nowhere states how this right has been violated and by who. It is the Independent Electoral and Boundaries Commission that clears candidates to vie for various positions. The petitioner has not indicated that he presented himself to the 3rd respondent and it refused to clear him.

21. He only mentions that the registrar of Political parties (2nd respondent) has refused to register his party. In its detailed replying affidavit the 2nd respondent has explained the journey the body has walked with the petitioner before giving him a provisional registration. From the explanation it’s clear that the petitioner was non-compliant with a number of requirements for a long time.

22. Section 15 of the Political Parties Act makes provision for the rights and privileges of a provisionally registered party as follows:-“(1)A political party which has been provisionally registered shall be entitled—(a)to hold and address public meetings in any area in Kenya for the purposes of publicising the political party and recruiting members;(b)to the protection and assistance of the State security agencies for the purposes of facilitating peaceful and orderly meetings; and(c)to the provision by the State, of fair opportunity to present the political party’s programmes to the public by ensuring equitable access to the State owned media.(2)Provisional registration shall not entitle any political party to organise or hold public meetings in connection with any election, or to propose or campaign for any candidate in any election.(3)A political party which contravenes the provision of subsection (2) shall not qualify for full registration.

23. With the provisional certificate of registration, the petitioner and his followers/members cannot vie for any political seat. The decision to issue the petitioner with a provisional certificate of registration was made by the registrar of Political Parties (2nd respondent). If the petitioner is aggrieved by that decision which appears to be the case, then his first port of call should have been the Political parties disputes tribunal. Section 34C of the Act provides:-“(1)The Registrar may make changes to the records of political parties submitted to the Registrar under this Act where—(a)the application by a provisionally registered political party for full registration has not been granted;(3)The Registrar shall notify the political party of any change made to its records under subsection (1).(4)A political party that is dissatisfied by the decision of the Registrar under subsection (1) may appeal to the Tribunal.”

24. There is therefore a laid down process for challenging the Registrar’s decision which the petitioner chose not to pursue for the eighteen (18) months he claims to have been denied registration.

25. This brings me to the doctrine of exhaustionarticle 159 (c) of the Constitution provides as follows;“159(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);”

26. The Constitution embraces the use of alternative mechanisms of dispute resolutions. That is the reason why a number of Tribunals have been set up to deal with and resolve disputes at the lowest levels before they escalate to the courts.

27. Mumbi Ngugi J (as she then was) in Rich Productions Ltd v Kenya Pipeline & another [2014] eKLR stated thus:“69. This would result in undermining institutions such as the 2nd respondent which are established by law, and it would be contrary to the express provisions of the Constitution at article 159 which enjoined the court, in the exercise of judicial authority, to promote alternative forms of dispute resolution.”

28. In Speaker of National Assembly v. Njenga karume[2008] 1 KLR the Court of Appeal held:“In our view there is considerable merit ….that where there is clear procedure for the redress of any particular grievance prescribed by Constitution or an Act of Parliament, that procedure should be strictly followed.”Also see Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others[2015] eKLR.

29. I therefore agree that where a procedure has been set out by the Constitution or parliament for handling a dispute the same must be adhered to. There are however exceptions to this principle where the court finds that after doing an extensive analysis of the facts there is a lot of public interest involved. Further where the court finds that exhaustion rule does not serve the values enshrined in the Constitution or law.See Night Rose Cosmetics [1972] Ltd v Nairobi County Government and 2 others [2018] eKLR;(ii)Republic v Independent electoral and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR.

30. Bearing in mind all these decisions and the facts before this court I find that the petition herein does not first of all disclose violation of any provision of the Constitution. Secondly the petitioner’s grievances should have first been addressed by the Political parties dispute Tribunal. Thirdly the 2nd respondent has nothing to do with the petitioner’s woes since he has never presented to it his papers seeking presidential candidature and has been denied. It should not have been dragged into this matter.

31. I therefore find that the petition lacks merit and I dismisses it with costs.

Orders accordingly.

DELIVERED, VIRTUALLY DATED AND SIGNED THIS 14THDAY OF JUNE 2022 IN OPEN COURT AT MILIMANI NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT