[2023] KEHC 17307 (KLR)

Keter & another v Independent Electoral and Boundaries Commission & another (Constitutional Petition 6 of 2022) [2023] KEHC 17307 (KLR) (11 May 2023) (Ruling)

Neutral citation: [2023] KEHC 17307 (KLR)

Republic of Kenya

In the High Court at Kitale

Constitutional Petition 6 of 2022

AC Mrima, J

May 11, 2023

Between

Jonathan Kipkorir Keter

1st Petitioner

Angeline Too

2nd Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

United Democratic Alliance Party

2nd Respondent

Ruling

Introduction: 1. This ruling is in respect of a Notice of Preliminary Objection dated 24th October, 2022. The objection was taken out by the 1st Respondent herein, the Independent Electoral and Boundaries Commission, and challenged the jurisdiction of this Court on two grounds.

2. The objection was vehemently opposed by the Petitioners. The 2nd Respondent, United Democratic Alliance Party, did not take part in the hearing of the objection.

The Objection: 3. The objection was tailored as follows: -1. That this Honorable Court lacks the jurisdiction to hear and determine this Petition in view of Section 75 (1A) of the Elections Act;2. That the Petition is incurably or fatally defective, incompetent and bad in law for want of Affidavits in support thereof;3. That under Article 88 (4) (c) of the Constitution of Kenya 2010, Section 74 (2) of the Elections Act Regulation 99(2) of the Elections (General) Regulations 2012 and Rule 9 of the Rules of Procedure on Settlement of Disputes, this Court lacks the jurisdiction to handle the matter;4. The Petition is therefore an abuse of the court’s process.

4. By the directions of this Court, the objection was heard by way of written submissions. The parties duly filed and exchanged their respective submissions.

5. Justifying that this Court lacks jurisdiction to hear and determine the subject matter, the 1st Respondent submitted on the two main issues. They were that the Petition cannot be sustained by virtue of Section 75(1A) of the Elections Act and that Petition was incurably defective for want a valid Affidavit.

6. In respect to the contention that the Petition lacks a legal leg to stand on by virtue of Section 75(1A) of the Elections Act, the 1st Respondent submitted that the dispute revolved around the publication of a Kenya Gazette Notice No. 10712 Vol. CXXIV-No. 186 by the 1st Respondent. The Notice was published on 9th September, 2022. (In these proceedings, this Court will hereinafter refer to the said Gazette Notice to as the ‘the Notice’).

7. It was further submitted that the Notice was on the Nomination of Members of the County Assemblies within the country and that in the Notice, were nominees for special seats of the Trans-Nzoia County Assembly.

8. According to the 1st Respondent, the Notice complied with Articles 88(5), 90 and 177 of the Constitution as well as Sections 34, 35, 36 and 37 of the Elections Act.

9. The 1st Respondent contended that the nominees in the Notice stood elected in line with Article 90(2)(a) of the Constitution. In that respect, the significance of the process was deemed to be an election process through nomination finalizing the constitution of the Trans-Nzoia County Assembly.

10. To the 1st Respondent, any dispute challenging the nominations was to be lodged by way of an election petition by dint of Section 75 (1A) of the Elections Act and not by way of a Constitutional Petition.

11. Several decisions were cited in support of the foregoing submissions including Moses Mwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5 others [2016] eKLR and Orange Democratic Movement vs. Yusuf Ali Mohamed & others [2018] eKLR.

12. On whether the Petition was incurably defective for want an Affidavit, the 1st Respondent cited that Rule 11(1) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms) Practice and Procedure Rules, 2013 provided that a Petition must be filed together with a Supporting Affidavit. It was submitted that the Affidavit filed in support of the Petition was incurably defective for two reasons; firstly, it was filed contrary to Order 1, Rule 13 of the Civil Procedure Rules 2010. Thus, the failure to obtain authority as required rendered the suit fatally incompetent as no Affidavit was recognized as filed. The decisions in Andrew Ireri Njeru vs. Embu Nyangi Ndiiri Proposed Society Chairman and others vs. Daniel Nganga Kangi & another [2015] eKLR and Research International East Africa Limited vs. Julius Arisi & 213 others [2007] eKLR were cited for the presupposition.

13. Secondly, the Affidavit was defective as it was not dated, stamped or commissioned by a Commissioner for Oaths thus violating Section 5 of the Oaths and Statutory Declaration Act and the holding in Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR.

14. Based on the two grounds, the 1st Respondent prayed that the Objection be allowed with costs.

15. The Petitioners opened their submissions by arguing that the second ground of the objection could not be, properly so, raised as a preliminary point as it invited the Court to inquire by way of evidence hence not grounded purely on a point of law. For this holding, they relied on Andrew Marigwa vs. Josephat Ondieki Kebati [2015] eKLR.

16. On the Affidavit, the Petitioners stated that mere technicalities, errors and omissions as pointed out by the 1st Respondent were curable under Article 159(2)(d) of the Constitution and referred to several authorities in support. Be that as it may, the Petitioners submitted that they cured the uncommissioned, unsigned and undated Affidavit by subsequently filing a duly compliant Affidavit. As such, the 1st Respondent’s argument was deemed to be weak and baseless and the decision in Saggu V. Roadmaster Cycle vs. Roadmaster Cycles (U) Limited [2002] 1 EA 258 was fronted for this position.

17. On whether the matter ought to have been instituted by way of an Election Petition, the Petitioners acknowledged that the said grounds raised pure points of law but opposed their basis and reliance. Firstly, the Petitioners submitted that the Petition before this Court was properly instituted because it sought to redress violation of several constitutional provisions. It did not, thus, meet the attributes of an election petition since the petition outlined instances of breaches of the Petitioners’ rights as persons living with disabilities, the 1st Respondent’s bias and violations of Articles 27 (1), (6) and (8), 47 (2), 54 (2), 175 (c) and 177 (1) (b) and (c) of the Constitution. The Petitioners further accused the 1st Respondent of misleading this Court and laying false claims.

18. Secondly, the Petitioners argued that the Petition before this Court satisfied the threshold for the constituent elements of a Constitutional Petition as set out in the locus classicus cases of Anarita Karimi Njeru vs. Attorney General (1979) eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance [2013] eKLR.

19. Thirdly, the Petitioners argued that since any challenge to the validity of elections of Members of the County Assembly is the mandate donated to the Resident Magistrate’s Court as governed by Section 75(1A) of the Elections Act, then the 1st Respondent would be acting ultra vires if made to determine the issues raised in the Petition since it has no such powers. They also argued that the provisions of Section 88(4)(e) of the Constitution, Section 74(2) of the Elections Act, Regulation 99(2) of the Elections (General) Regulations 2012 and Rule 9 of the Rules of Procedure on Settlement of Disputes did not apply in the circumstances of the case. They cited Evans Ladtema Muswahili vs. Vihiga County Public Service Board & 2 others; Marley Ezekiel Ayiego (Interested Party) [2021] eKLR in submitting that the doctrine of exhaustion did not operate to oust the jurisdiction of this Court set out in Article 165 (3) of the Constitution.

20. The Petitioners, then firmed it that based on their said arguments, the Magistrate’s Court and the 1st Respondent lacked jurisdiction to determine the questions raised in the Petition.

21. Finally, the Petitioners variously distinguished the decisions cited by the 1st Respondent.

22. In the end, they urged this Court to dismiss the objection with costs.

Analysis: 23. The Court has carefully considered the Objection, the submissions thereon and the decisions referred to by the parties.

24. As the objection is by way of a Notice of Preliminary Objection, it is imperative to have a look at the law on such objections.

25. The validity of a preliminary objection is considered on the basis that it conforms with the long-standing legal principle that it is raised on a platform of agreed set of facts, it raises pure points of law and is capable of wholly determining the matter.

26. To that end, the locus classicus decision in Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd (1969) E.A 696 at page 700, comes to the fore. In that case, the Court defined a preliminary objection and discussed its operation in the following eloquent manner: -...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration....A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.

27. The Supreme Court weighed in on the issue in Aviation & Allied Workers Union Kenya -vs- Kenya Airways Ltd & 3 Others [2015] eKLR and stated thus: -…. Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.

28. Ojwang J, as he then was, emphasized the finding in Mukisa Biscuit -vs- West End Distributors case (supra) in Civil Suit No. 85 of 1992, Oraro -vs- Mbaja [2005] 1 KLR 141 when he observed as follows: -….. I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed….

29. In John Musakali -vs- Speaker County of Bungoma & 4 others (2015) eKLR the validity of a preliminary objection was considered in the following manner: -…. The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on a point of law….

30. Finally, in Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, guidance was given on what Courts ought to consider in determining the validity of preliminary objections. It was observed: -….. In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion….

31. On whether the issue of jurisdiction is a pure point of law, the Supreme Court in Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.

32. I now return to the contents of the objection.

33. Without much ado, since the objection impugns the jurisdiction of this Court, then going by the Supreme Court in Mary Wambui Munene v. Peter Gichuki Kingara and Six Others case (supra), the objection is a jurisdictional challenge on a pure question of law and if sustained by this Court, it can terminate the entire matter. Therefore, the objection passes the proprietary test and is for further consideration.

34. Having said so, I will now deal with the issue as to whether the dispute ought to have taken the nature of an Election Petition.

35. There is no doubt that the contention in this matter relates to the Notice issued by the 1st Respondent. As said, the Notice declared those who were nominated by various parties to be Members of County Assemblies in Kenya.

36. The question which, therefore, begs for an answer is whether the process of nominating persons to serve in the County Assemblies as Nominated Members of County Assemblies amounts to an election.

37. The good news is that the answer to this question is already well rendered by decisions of superior Courts which are binding to this Court. As such, that makes the work of this Court relatively light.

38. To start off, there is need to remind ourselves of the settled legal principle that elections are a process and not an event. This principle was discussed in details by the Supreme Court of Kenya in various decisions. This Court will consider some of them.

39. In Raila Amollo Odinga & Another vs. Independent Electoral & Boundaries Commission & 4 Others (2017) eKLR, the Apex had the following to say: -(224)On our part, having considered the opposing positions, we are of the view that, the contentions by the 1st and 2nd respondents ignore two important factors. One, that elections are not only about numbers as many, surprisingly even prominent lawyers, would like the country to believe. Even in numbers, we used to be told in school that to arrive at a mathematical solution, there is always a computational path one has to take, as proof that the process indeed gives rise to the stated solution. 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….‖[101] Incidentally, IEBC‘s own Election Manual (Source Book)[102] recognizes that an election is indeed a process.(225)There are many other authorities which speak to this proposition. In Kanhiyalal Omar v. R.K. Trivedi & Others[103] and Union of India v. Association for Democratic Reforms & Another[104], 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.[105] Lady Justice Georgina Wood, the former Chief Justice of Ghana, made the same point and added other stages when she stated:…. The Electoral process is not confined to the casting of votes on an election day and the subsequent declaration of election results thereafter. There are series of other processes, such as the demarcation of the country into constituencies, registration of qualified voters, registration of political parties, the organization of the whole polling system to manage and conduct the elections ending up with the declaration of results and so on [106]And according to the European Human Rights Committee, the process also includes the right to challenge the election results in a court of law or other tribunal. [107](226)Here in Kenya, the issue of elections as a process was discussed in the case of Karanja Kabage v. Joseph Kiuna Kariambegu Nganga & 2 Others[108] where the High Court observed that:… an election is an elaborate process that begins with registration of voters, nomination of candidates to the actual electoral offices, voting or counting and tallying of votes and finally declaration of the winner by Gazettement. In determining the question of the validity of the election of a candidate, the court is bound to examine the entire process up to the declaration of results….The concept of free and fair elections is expressed not only on the voting day but throughout the election process….Any non-compliance with the law regulating these processes would affect the validity of the election of the Member of Parliament.

55. There is also In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR where the Supreme Court stated as follows in respect to the electoral process: -[100] …. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages. Article 137 of the Constitution provides for “qualifications and disqualifications for election as President” – and this touches on the tasks of agencies such as political parties which deal with early stages of nomination; it touches also on election management by the Independent Electoral and Boundaries Commission (IEBC). Therefore, outside the framework of the events of the day of Presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties. Yet still, the dispute would still have clear bearing on the conduct of the Presidential election.

40. In Petition 2 & 4 of 2017 (consolidated), John Harun Mwau & 2 others -vs- Independent Electoral and Boundaries Commission & 2 others [2017] eKLR, the Supreme Court stated as follows: -(231) he nomination process is deeply rooted in the Constitution, which recognizes that an electoral contest must be preceded by the nomination of candidates to vie for elective positions.

41. The Court went on further to say that: -…Nomination, therefore, is not just a formality, or an exercise in futility, nor can it be dispensed with, save for lawful cause.…In summary, therefore, at a general level, nomination is depicted as a process through which candidates are identified for participation in an election, subject to them being properly qualified under the law, for the elective seat that they seek. It is a critical component of an electoral process, without which there would be no election.

42. This Court believes that it has said enough to affirm the position that elections are processes and not one-time events.

43. Returning to the issue of nominations, suffice to say that nomination of candidates usually takes two forms. Both forms arise where persons are sponsored by political parties. One form of the nominations involves the clearing of a person by a political party to vie in an election by facing other candidates under the auspices of universal suffrage once an election date is announced. The other form of nomination is by a political party appointing some of its members to join Parliament or the County Assemblies based on the number of seats a political party garners in an election. The latter is the case in this matter.

44. Having settled the fact that elections are broader processes which involve nominations, there is need to ascertain whether nominations by political parties ending up with appointing some of the members to join Parliament or the County Assemblies based on the number of seats a political party garners in an election are also regarded as elections and how disputes arising from such nominations are to be dealt with.

45. The Supreme Court in Moses Mwicigi & 14 others vs. Independent Electoral and Boundaries Commission & 5 others [2016] eKLR extensively dealt with the above issues including whether a Constitutional Petition or Judicial Review proceedings before the High Court can be invoked to vitiate an election related or party nomination dispute subsequent to gazettement of nominated candidates.

46. The Supreme Court expressed itself 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 seats due 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 the special seats, 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, an “election by registered voters”, as was held in the Joho Case, is in principle, completed by the issuance of Form 38, which terminates the returning officer’s mandate, and shifts any issue as to the validity of results from the IEBC to the Election Court. (Emphasis supplied)[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 any 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. (Emphasis supplied)(115)The Elections Act confers jurisdiction upon Magistrates Courts to determine the validity of the election of a member of a County Assembly; Section 75 (1A) of the Act provides that:“A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.”(117)It is clear to us that the Constitution provides for two modes of ‘election’. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way of nomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’.(119)To allow an electoral dispute to be transmuted into a petition for the vindication of fundamental rights under Article 165 (3) of the Constitution, or through judicial review proceedings, in our respectful opinion, carries the risk of opening up a parallel electoral dispute-resolution regime. Such an event would serve not only to complicate, but ultimately, to defeat the sui generis character of electoral dispute-resolution mechanisms, and notwithstanding the vital role of electoral dispute-settlement in the progressive governance set-up of the current Constitution.”(Emphasis supplied)

47. Going further, the Court of Appeal in Feisal Shaib Khan & another v Independent Electoral and Boundaries Commission (IEBC) & 5 Others [2018] eKLR also dealt with the above matter and after considering the above position by the Supreme Court went ahead and stated as follows: -18. We have also considered dicta in Thande vs. Montgomery (1970) EA 341, in which the East African Court of Appeal held that nominations to stand for elections is part of the election process and as such, can only be challenged after the election by way of an election petition. In Mwihia & another vs. Ayah & Another [2008] 1 KLR (EP) 450, 456-458 it was held that nominations to stand for elections are part of the election process and as such, they could only be challenged after the elections by way of an election petition. In Kipkalya Kiprono Kones vs. The Republic & Another Ex-parte Kimani Wanyoike & 4 Others [2006] eKLR it was held that an election petition was the only valid means of challenging an election and the court would only be seized with the Petition once the election results have been declared.19. Guided by the foregoing judicial decisions, this Court in Kennedy Moki vs. Rachel Kaki Nyamai & 2 other [2018] eKLR, expressed itself as follows:56. Notwithstanding the foregoing, we are alive to dicta which state that an election court is the proper forum at which to challenge by way of petition nomination disputes. On our part, having reviewed the case law, we are persuaded that the dicta in Kipkalya Kiprono Kones vs. The Republic &Another Ex-parte Kimani Wanyoike & 4 Others [2006] eKLR is good law where it was held that an election petition was the only valid means of challenging an election. All other proceedings before PPDT or Judicial Review are not proceedings challenging the declared results of an election and such proceedings cannot vitiate or validate the declared results of an election. We are also persuaded with dicta in Mwihia & another vs. Ayah & another [2008] 1 KLR (EP) 450where it was held that nominations to stand for elections are part of the election process and as such, they could only be challenged after the elections by way of an election petition. We are further convinced that the decision in Wamboko vs. Kibunguchi & another, (2008) 2 KLR 477, is good law where it was held that an election court has jurisdiction to hear and determine a petition where one of the issues is nomination of a candidate - as nomination is a process of election.

48. And, in summing up the issue of the jurisdiction of the High Court in disputes arising from elections by way of nominations, the Court stated as follows: -20. In the instant appeal, the issue at hand is whether the trial court had jurisdiction to hear and determine a nomination dispute relating to membership of the Lamu County Assembly. In our considered view, the High Court had no jurisdiction for the following reasons:(a)Party nomination disputes after gazettement by the IEBC can only be heard and determined by way of an election petition. Neither a judicial review application nor a constitutional petition can resolve or initiate electoral dispute resolution after gazettement of nomination or election results.(b)As regards membership to the County Assembly, jurisdiction to hear an election petition is vested upon the Magistrate’s Court and not the High Court. In the instant case, the petition filed by the appellants at the High Court was not an election petition before an election court presided over by a Magistrate duly gazetted by the Chief Justice.(c)In addition, the prayers sought by the appellants in the Petition before the High Court was de-gazettement of the 3rd and 4th respondents who had already been gazetted as Members of the Lamu County Assembly. The jurisdiction to deal with any such disputes after gazettement lies with the Magistrate’s court which can only be moved by way of an election petition.21. In arriving at our decision that the trial court had no jurisdiction to hear the petition filed before it, we are cognizant of the decision by this Court in Hamdia Taroi Sheikh Nuri vs. Faith Tumaini Kombe & 2 Others, Election Petition Appeal No. 27 of 2018 where it was held that this Court lacks jurisdiction to hear appeals relating to membership to the County Assembly. In holding that this Court has no jurisdiction, it was expressed that “it would seem that election appeals by members of the County Assembly to this Court were neither contemplated nor permitted”.22. In our decision in the instant matter, we are guided and bound by the Supreme Court decision in Moses Mwicigi & 14 others (supra)where the Court stated that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’. Guided the judicial authorities cited and bound by the Supreme Court, we find that this appeal has no merit.23. For reasons stated above, we are satisfied that the trial court did not err in upholding the Preliminary Objection. In view of the jurisdictional determination we have made in this appeal, we are satisfied that the other numerous grounds of appeal enumerated in the memorandum must ipso facto collapse. The appeal has no merit and we hereby dismiss it with costs.

49. Guided by the foregoing judicial decisions, and on the basis of the doctrine of stare decisis, this Court affirms the position that disputes arising from elections by way of nominations are a preserve of election Courts. In this case, the appropriate forum for adjudicating the Petitioners’ grievances would be the Court designated under Section 75 (1A) of the Elections Act.

Disposition: 50. Deriving from the foregoing analysis, this Court finds that the matter can safely come to an end at this point. A consideration of the other limb of the objection will add no value to any of the parties. As such, the Court opts to determine the objection accordingly.

51. Consequently, the following final orders do hereby issue: -a.The Notice of Preliminary Objection dated 24th October, 2022 be and is hereby upheld.b.The Petition is struck out with costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 11TH DAY OF MAY, 2023. A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Mr. Mwangi, Counsel for the Petitioner.Mr. Wanyama, Counsel for the Respondent.Regina/Chemutai – Court Assistants.