[2022] KEHC 3276 (KLR)

Karanja v Karemeri & 5 others (Constitutional Petition E333 of 2022) [2022] KEHC 3276 (KLR) (Constitutional and Human Rights) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3276 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E333 of 2022

AC Mrima, J

July 19, 2022

Between

James Kariuki Karanja

Petitioner

and

Patrick Thuku Karemeri

1st Respondent

Returning Officer, Kasarani Constituency

2nd Respondent

Independent Electoral and Boundary Commission

3rd Respondent

Office of the Registrar of Political Parties

4th Respondent

Tujibebe Wakenya Party

5th Respondent

The Hon. Attorney General

6th Respondent

Ruling

1. This ruling relates to the Notice of Preliminary objection dated July 12, 2022.

2. The objection was jointly taken out by the 1st and 5th respondents herein.

3. The objection was tailored as follows: -1)That the petitioner's Petition is frivolous, vexatious, misconceived and discloses no reasonable cause of action as against the 1st and 5th respondent thus rendering it fatally and incurably defective.2)That the petitioner's petition is incompetent and legally untenable in view of the provisions of article 88 (4) (e) section 74 (1) of the Elections Act and Regulation 99 (2) of the Election (General) Regulations, 2012 which provides the 2nd respondent with power to settle nomination disputes.3)Thatthis honourable court lacks jurisdiction to hear and determine this petition in view of the provisions of article 88 (4) (e) of the Constitution, and section 74 (1) of the Elections Act, 2011 and section 39 of the Political Parties Act.4)That thepetitioner has not exhausted the pre-election dispute mechanisms which are provided by law for challenging inter-parties nomination disputes.5)ThatFurther, the 5th respondent has not breached any provision of law; constitutional or otherwise, as to warrant issuance of the orders sought against it.6)Thatthishonourable court being without the requisite Jurisdiction to determine the Applicant Notice of Motion dated July 1, 2022be obliged to strike out the same with costs to the Petitioner.

4. Parties filed their respective submissions on the objection.

5. The brief background of this matter is that the 1st respondent herein was cleared by the 2nd respondent to stand for the elective position of a Member of County Assembly of Ruai Ward within Nairobi City County. That was on June 26, 2022.

6. Dissatisfied with the decision of the 2nd respondent, one Benson Wachira Wanyeki, lodged a complaint before the Independent Electoral and Boundaries Commission’s Dispute Resolution Committee (hereinafter referred to as ‘the DRC’) challenging the clearance of the 1st respondent herein. It was Complaint No. 261 of 2022 Benson Wachira Wanyeki vs. Patrick Thuku Karemeri & Another.

7. The complaint was heard and allowed vide a decision rendered on June 20, 2022. The DRC then made the following orders: - 1. The Returning Officer Kasarani constituency is hereby directed to recall the clearance certificate issued to the 1st respondent for clearance purposes within 72 hours of receipt of this decision.

2. The Complainant to present to the Returning Officer, Kasarani Constituency any material evidence regarding the 1st respondent’s party membership status within 48 upon service of this decision to the Returning Officer.

3. Each party to bear its own costs.

8. The 2nd respondent complied with the orders of the DRC. A fresh exercise was carried out within the decreed timelines and the 2nd respondent, once again, and on the basis of the evidence presented, cleared the 1st Respondent to stand for the elective position of a Member of County Assembly of Ruai Ward within Nairobi City County.

9. Resulting therefrom, thepetitioner herein lodged the current Petition.

10. The Petition in essence challenges the decision made by the 2nd respondent in clearing the 1st respondent for the second time. The petitioner opted to lodge the dispute before this court.

11. There is no doubt that the dispute before this court is a pre-election dispute. It is mainly contended that the dispute ought to have been field before the DRC just like the initial one.

12. To enable this court to properly render itself on the jurisdiction of the DRC, I will refer to a matter which this court recently dealt with. It was Nairobi High Court Constitutional Petition No E321 of 2022 Dennis Gakuu Wahome v Independent Electoral and Boundaries Commission &others (unreported).

13. This is what the court rendered: -The jurisdiction of DRC: 214. The jurisdiction of the DRC derives from article 88(4)(e) of the Constitution and section 74 of the Elections Act.

215. Article 88(4)(e) of the Constitution states as follows: - 88. Independent Electoral and Boundaries Commission(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for -(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;

216. Section 74 of the Elections Act stipulates as under: - 74. Settlement of certain disputes:(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.

217. The jurisdiction of the DRC is further delimited under the Political Parties Act. The said Act provides for the Political Parties Disputes Tribunal in section 38 thereof with its jurisdiction provided for under Section 40.

218. The jurisdiction of the Political Parties Disputes Tribunal under section 40 of the Political Parties Disputes Tribunal is provided for in the following terms: - 40. Jurisdiction of Tribunal(1)The Tribunal shall determine-(a)disputes between the members of a political party;(b)disputes between a member of a political party and the political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners;(f)appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.(3)A coalition agreement shall provide for internal dispute resolution mechanisms

219. The Supreme Court has extensively dealt with the jurisdiction of the DRC, the Political Parties Disputes Tribunal and the Election Courts. That was in, inter alia, Silverse Lisamula Anami v Independent Electoral and Boundaries Commission & 2 others SC Petition No 30 of 2018, Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others case (supra) and in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR.

220. Deriving from the foregoing, the DRC, therefore, exercises jurisdiction over election disputes except those which arise upon the declaration of election results and the disputes which fall within the purview of the Political Parties Disputes Tribunal.

14. From the above caption, it is apparent that the dispute herein does not fall within the jurisdiction of the Political Parties Disputes Tribunal. The dispute is also not one that arose upon the declaration of elections results.

15. The instant dispute is, therefore, one which squarely falls within the jurisdiction of the DRC. Just like the initial Complaint No. 261 of 2022 that challenged the clearance of the 1st respondent herein, any dispute that arose from the subsequent clearance of the 1st Respondent had to be subjected to the DRC.

16. It is the position in law that this court must exercise restraint and accord specialized entities established under the Constitution and in statutes the latitude to discharge their mandates. That is the essence of the doctrine of exhaustion. Unless and until one is able to demonstrate how the doctrine of exhaustion is inapplicable in a set of circumstances, a Court must decline jurisdiction to deal with a matter which is the preserve of a specialized entity.

17. In this matter, there is no justification why the dispute could not be dealt with before the DRC. The subsequent clearance of the 1st respondent by the 2nd respondent was a new decision whose challenge was only before the DRC.

18. As a result, the objection is merited.

19. Consequently, the following final orders do hereby issue: -a.The Notice of Preliminary Objection dated July 12, 2022is allowed.b.The Petition and the Notice of Motion dated July 1, 2022be and are hereby struck out.c.The Petitioner shall shoulder the costs of the Petition.d.Matter is hereby marked as CLOSED.

Orders accordingly.

DELIVERED, DATED andSIGNED atNAIROBI this19th day ofJuly, 2022. A. C. MRIMAJUDGE