[2022] KEHC 12191 (KLR)

Kilonzo v Independent Electoral and Boundaries Commission; Malombe & another (Interested Parties) (Petition 1 of 2022) [2022] KEHC 12191 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12191 (KLR)

Republic of Kenya

In the High Court at Kitui

Petition 1 of 2022

RK Limo, J

July 8, 2022

FORMERLY MILIMANI COURT (HIGH COURT PETITION NO. E304 OF 2022) CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

IN THE MATTER OF: ARTICLE 3(1), 10, 22, 23, 27, 35, 38, 47, 50(10, 73,84, 91, 159, 165(3), 258 & 259 (1) OF THE CONSTITUTION OF KENYA, 2010. IN THE MATTER OF: ALLEGED VIOLATION OF ARTICLES 1,2,3(1), 4(2), 10,19, 20(1)(2), 21, 24, 27, 38, 47, 73, 75, 91, 99 & 232 OF THE CONSTITUTION OF KENYA IN THE MATTER OF: NOMINATION OF JULIUS MAKAU MALOMBE AS A CANDIDATE FOR ELECTION AS GOVERNOR KITUI COUNTY.

Between

AMB. Julius Kiema Kilonzo

Petitioner

and

Independent Electoral and Boundaries Commission

Respondent

and

Dr. Julius Makau Malombe

Interested Party

Wiper Democratic Movement

Interested Party

Judgment

1. The petitioner herein, Ambassador Julius Kiema Kilonzo an aspiring candidate of the elective seat of Governor Kitui County through Wiper Democratic Movement Party has lodged this petition against the Independent Electoral and Boundaries Commission and Julius Makau Malombe and Wiper Democratic Movement, the 1st and 2nd interested parties respectively.

2. The gist of this petition is about the manner in which party primaries were conducted on June 5, 2022 by the 2nd interested party and the decision by the respondent declining to entertain his complaint regarding the manner in which the nomination exercise was conducted.

3. The petitioner has on the basis of that sought for the determination of the following questions namely;a.Whether the Independent and Electoral Boundaries Commission abdicated its constitutional duty in determining the complaint registered vide Electoral Boundaries Commission /83/2022 by the petitionerb.Whether Independent Electoral Boundaries Commission violated art 10, 23, 47, 50 (1), 73, 88, 91 and 159 in its determination dated June 19, 2022 by Independent Electoral Boundaries Commission ought to be reviewed and/or quashed.c.Whether Dr Julius Makau Malombe was lawfully nominated as a candidate by Wiper Democratic Movement in respect to elective seat/position of Governor, Kitui Countyd.Whether the Electoral Boundaries Commission and /or the County Returning Officer Kitui County lawfully cleared Dr Julius Makau Malombe to vie for the position of Governor Kitui County.

4. The petitioner is seeking for the following reliefs;i.Judicial review order of certiorari to bring to the High Court for purposes of quashing the decision of the Independent Electoral and Boundaries Commission dated June 19, 2022 in complaint No Electoral Boundaries Commission No 83/2022ii.Judicial review order of prohibition to restrain the Independent Electoral and Independent Boundaries Commission from processing or publishing the name of Dr Julius Makau Malombe as a candidate to contest in the general elections to be held on August 9, 2022 for the position of Governor Kitui Countyiii.Judicial review order of mandamus directed at the Independent Electoral and Boundaries Commission to revoke and nullify the clearance of Dr Julius Makau Malombe or issuance of the Certificate of Registration for County Elections dated June 6, 2022 issued in favour of Dr Julius Makau Malombeiv.A declaration that Wiper Democratic Movement violated articles 10, 27, 38, 47, 73, 88, 91 and 259 of the Constitution by issuing a party nomination certificate to Dr Julius Makau Malombev.A permanent order of injunction directed at the Independent Electoral and Boundaries Commission preventing them from publishing in the Kenya Gazette the name of Dr Julius Makau Malombe as a candidate for the position of Governor, Kitui County in respect of general elections to be held on August 9, 2022. vi.A declaration that the election and or nomination of Dr Julius Makau Malombe as a candidate of Wiper Democratic Movement for the elective seat or position of Governor, Kitui County was unlawful, irregular, null and voidvii.A declaration that the respondent violated articles 10, 27, 47, 50(1), 81, 88 and 259 of theConstitution in its decision dated June 19, 2022 and or in issuing a certificate of registration for county elections to the 1st interested partyviii.A mandatory order of injunction directed to the 2nd interested party, Wiper Democratic Movement to either conduct fresh nomination exercise or issue a nomination certificate to the petitionerix.Any other just, fair and appropriate relied that the court may deem appropriate to issuex.Costs of the petition.

5. Before I delve into the petition herein, a brief summary of background of the petitioner’s grievance is important.

6. The petitioner is an aspiring candidate for the elective position of Governor Kitui County which is due to be filled in the next general elections on August 9, 2022.

7. The petitioner states that he submitted his application for consideration as the 2nd interested party’s candidate for the governor position on March 2, 2022. That the 2nd interested party announced that party polls would take place on April 21, 2022 but on April 19, 2022, the 2nd interested party conducted indirect nominations and issued the 1st interested party with a party nomination certificate to contest for the position of governor in the general elections.

8. Aggrieved by the decision, the petitioner lodged a complaint with the 2nd interested party’s National Elections Appeals Board vide letter dated April 20, 2022 which was dismissed on April 25, 2022 and the certificate issued to the 1st interested party was upheld.

9. The petitioner being aggrieved by the decision filed a complaint before the Political Parties Dispute Tribunal on April 26, 2022 which was again dismissed on May 12, 2022.

10. The petitioner aggrieved, lodged a petition before the High Court in HCA No E132 of 2022 Amb Julius Kiema Kilonzo v Wiper Democratic Movement & 3 others. The petition was heard and a decision was delivered on June 3, 2022 directing the 2nd interested party to conduct fresh party nominations within 72 hours.

11. The 2nd interested party sent communication vide a letter dated June 3, 2022 indicating that it was going to conduct indirect nomination using party delegates selected from 8 constituencies of Kitui County. The fresh nominations were to be conducted on June 5, 2022 as per letter exhibited at page 302 of the petitioner’s bundle of documents.

12. The petitioner, through their advocates wrote to the 2nd interested party on June 4, 2022 inquiring on when fresh nominations were to be conducted as per letter exhibited at page 304 of the petitioner’s bundle.

13. On June 5, 2022, the 2nd interested party sent a letter dated June 4, 2022 to the petitioner’s advocates, indicating that there was going to be a change of the mode of party nominations from use of the national party delegates to holding party primaries to through universal suffrage. That letter is exhibited at pages 306-313 of the petition of the petitioner’s bundle. This was after the petitioner had raised issues on the mode of nominations.

14. The petitioner was also asked to appoint his agents to the party primaries venues via communication that was sent on Whatsapp on June 5, 2022 at 11. 41 am. He protested the new developments vide a letter written by his counsel to the 2nd interested party dated June 5, 2022 at page 332 of the petitioner’s bundle which raised a number of issues, key among them was the number of polling stations and time to carry out the exercise.

15. The 2nd interested party conducted fresh party nominations on June 5, 2022 where the 1st interested party was declared the preferred party candidate and handed the party’s certificate at page 317 of the petitioner’s bundle.

The Petitioner’s Case 16. The petitioner was aggrieved with the way the 2nd interested party conducted the repeat nominations after the initial nominations were nullified by the High Court as indicated above.

17. The petitioner’s case as filed before the respondent was that the 2nd interested party communicated to him late on the change on the mode in which the nominations were to be conducted. He took issue with the number of polling stations stating that eight polling stations were insufficient in the expansive county of Kitui which had a total of 1454 polling stations and the exercise conducted locked out many voters.

18. The petitioner faults the 2nd interested party for failing to act expeditiously which he claims was a deliberate move to scuttle the court’s judgment. He claims that the attempt to use “existing national party delegates’ who were party officials in the first place was suspect because the 2nd interested party abandoned the idea and resorted to indirect party nominations method.

19. The petitioner claims that the change of method was done vide a letter dated June 4, 2022 which reached him at 1. 59 am and that he realized then that the party had changed its position and was going to conduct the nomination exercise at 8. 00 am on the same day, June 5, 2022. He contends that there was no reasonable notice despite the short period of 72 hours ordered by court.

20. The petitioner claims that the 2nd interested party used ballot papers bearing the name and image of Senator David Musila who was a member of a different political party and that on that basis, the ballot paper did not meet the requirements of law.

21. He claims that ballot papers were delivered to Mwingi North, Kitui South and Kitui East Constituencies between 4. 00 pm and 5. 00 pm and as a result, the efficiency and integrity of votes cast cannot be verified.

22. He claims that the 2nd interested party declared the 1st interested party as the winner and duly nominated on June 5, 2022 and issued him with a nomination certificate.

23. According to him, the 2nd interested party violated the law by failing to conduct the nominations through direct party nominations or through universal suffrage.

24. The petitioner states that on June 7, 2022, he lodged a complaint with the respondent which complaint was dismissed by the respondent on grounds that it lacked jurisdiction and that the dispute ought to have been resolved through the 2nd interested party’s dispute resolution mechanism or through the Political Parties Dispute Tribunal (Political Parties Disputes Tribunal)

25. In his written submissions done through Learned Counsel CB Keya, the petitioner submits that his constitutional rights were infringed upon specifically, his right to equal; protection and benefit as provided for under article 27, his right to fair administrative action under article 47, his right to fair hearing as enshrined under article 50 (1), his right to be subjected to an electoral system which complies with political rights and free and fair elections as provided for under article 81, his right to have his dispute resolved by the respondent under article 88(4) (e) and finally that 2nd interested party breached article 91 which requires political parties to uphold democratic principles of good governance and democracy.

26. On the jurisdiction of the Independent Electoral and Boundaries Commission, the petitioner submits that the respondent’s Dispute Resolution Committee was the correct forum to hear and determine his complaint as the 2nd interested party’s party nomination certificate had already been forwarded to the respondent

27. He submits as soon as the certificate was forwarded to the respondent, the dispute shifted from the realm of Political Parties Disputes Tribunal to Independent Electoral and Boundaries Commission. He had relied on the case of Joseph Ibrahim Musyoki v Wiper Democratic Movement-Kenya & anor (2017] eKLR where the Court of Appeal held that as soon as the petitioner’s competitor’s name had been submitted to Independent Electoral and Boundaries Commission as the nominee of Wiper, the process had transited from party primary to nomination and that the jurisdiction to challenge the nomination laid with the Independent Electoral and Boundaries Commission.

28. The petitioner has also cited the following cases where the issue of jurisdiction between the Political Parties Disputes Tribunal and Electoral Boundaries Commission was rehashed;i.Sammy Ndungu Waiti versus Independent Electoral Boundaries Commission & 3 others [2019] eKLR in that case the court maintained that pre election disputes are a mandate of the Independent Electoral and Boundaries Commission and the Political Parties Dispute Tribunals as applicable and further, that Electoral Boundaries Commission has unquestionable jurisdiction under article 88 (4) to determine the disputes with finality subject to review or appeal.ii.Kyalo Peter Kyulu versuss Wavinya Ndeti & 3 others [2017] eKLR where the Court of Appeal upheld the decision of the High Court where the court was sitting as a judicial review court held that the Independent Electoral Boundaries Commission was at fault for determining a matter that related to party nominations as the same was not within its jurisdiction but that of Political Parties Disputes Tribunal. The main issue of contention in the case revolved around Wavinya Ndeti’s nomination as Wiper’s candidate after being a member of the party for less than a month.

29. The petitioner submits that the respondent was well seized with the jurisdiction to deal with his complaint and should not have shied away. He cites rule 5 of Rules of Procedure on Settlement of Disputes under the Elections Act to buttress contention.

30. He contests the representations made by the respondent and the interested parties that the dispute should have first been referred to political party’s dispute resolution mechanism. His argument is that once a political party forwards it candidate to Electoral Boundaries Commission the mandate of internal party resolution mechanism and Political Parties Disputes Tribunal ends. He cites the provisions of section 13 (2) of the Elections Act to support his contention adding that section 13 (1) stipulates that a party must nominate its candidate 90 days to an election. The petitioner does not give his view on what he expected his party to do in order to have this matter resolved and still comply with section 13 (1) of the Elections Act with regards to timelines given.

31. The petitioner submits that the 2nd interested party conducted a sham election and according to him he had demonstrated that the same was a travesty and contrary to principles set out under article 81 of theConstitution and cites the decision in Raila Amollo Odinga & anor v Electoral Boundaries Commission and 4 others [2017] eKLR and Gatirau Peter Munya v Dickson Mwenda Githinji &2 others [2014]) eKLR in his quest to have the nomination of the 1st interested party nullified by this court.

32. The petitioner submits that there are constitutional violations as follows;i.That the 2nd interested party failed to use the 286 polling stations it had used in conducting party primaries in respect of members of county assemblyii.That he was given short notice of the party primaries i.e he received a communication at 1:59 am on the day the party primaries were to be done.iii.That there was no transparency as the 2nd interested party did not display a register of its members in polling stations.iv.Further that the ballot papers created confusion and misled members of the public as they contained the name of Senator David Musila.

The Respondent’s Case 33. The respondent filed 14 grounds of opposition in response to this petition. The same is dated July 1, 2022. In summary, the respondent faults the petition of being fatally defective for the reason that the petitioner did not exhaust internal dispute resolution mechanism before filing, before moving the court. For that reason, the respondent states that this court does not have jurisdiction.

34. The respondent further states that this petition is an attempt to enforce the orders and judgment obtained in High Court Civil Appeal No E312 of 2022 and that the petitioner ought to have filed an application for contempt. It avers that this court lacks jurisdiction to supervise the enforcement of the said orders.

35. The respondent further states that the petition does not disclose any cause of action and that it offends rule 10(2) (c)and (d) of theConstitution (Protection of Rights and Fundamental Freedoms) Practice Rules, 2013 as it is not specific on what right has been violated. The respondent further states that it had not confirmed the 1st interested party’s nomination and that by the time it did, it was not aware of any dispute between the petitioner and the 1st interested party.

36. The respondent states that the dispute tabled before it was a party dispute and as such, it had no jurisdiction to handle the same and further, that recourse to any party dissatisfied with any of its decision is through either an appeal or a review to the High Court not through a constitutional petition. It contends that the Returning Officer Kitui County was not a party to the dispute before the respondent as such, the commission could not issue orders against a party not named in the complaint.

37. In its written submissions dated July 1, 2022 through Tiego and Company Advocates, the respondent submits that once it found it lacked jurisdiction, it downed its tools. It contends that it dealt with the earlier dispute or complaints No 83 of 2022.

38. The respondent contends that upon rendering itself, the only recourse open to the petitioner was to file an appeal against its decision and not a petition.

39. The respondent has relied on the case of Mohammed Abdi Mohamud vs Ahmed Mbdullahi Mohamad & 3 others: Ahmed Alo Muktar (Interested Party) [2019] eKLR where in handling an appeal from the Court of Appeal, the Supreme Court set out principles on matters of jurisdiction in determining pre-election disputes. The Supreme Court set out six governing principles with one being that in situations where the Independent Electoral and Boundaries Commission and Political Parties Disputes Tribunal had resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review court or in exercise of its supervisory jurisdiction under articles 165 (3) and (6) of theConstitution.

40. The respondent also submits that the dispute herein could have been resolved without turning it into a constitutional petition and has relied on the case of Garder General Trading Limited v County Government of Kilifi Department of Land, Housing and Physical Planning & another [2018] eKLR where the court found that the petitioner’s remedy lied in a cause of action for breach of contract and not in the petition filed. The court discussed the principle of constitutional avoidance and held that the suit fell within the realm of private law.

41. The respondent has also cited the Supreme Court decision in Sammy Ndungu Waity v Independent Electoral Boundaries Commission & 3 others [2019] eKLR where the court maintained that pre election disputes are a mandate of the Independent Electoral and Boundaries Commission and the Political Parties Dispute Tribunal as applicable and further, that Independent Electoral and Boundaries Commission has unquestionable jurisdiction under article 88 (4) to determine the disputes with finality subject to review or appeal.

42. The respondent further submits that the dispute was an intra-party dispute and as such it should have been handled by Political Parties Dispute Tribunals. The respondent has relied on the case of RepublicvIndependent Electoral and Boundaries Commission & 2 othersex parteWavinya Ndeti [2017] eKLR which dealt with the jurisdiction of Political Parties Disputes Tribunal and that of Independent Electoral and Boundaries Commission.

43. The respondent submits this court cannot exercise its jurisdiction and grant the prayers sought until all disputes resolution mechanisms as provided by law have been exhausted.

44. He avers that it was not cited a party in complaint No 83 of 2022 and that the dispute there was on procedure. It submits that the dispute arising from party primaries lied with Political Party Dispute Tribunal and that Independent Electoral Boundaries Commission only deals with nomination dispute. Its cites the decision of Republic v Independent Electoral and Boundaries Commission & 2 othersex parteWavinya Ndeti [2017] eKLR to support the contention.

45. On whether the court could make an exemption to the principle of exhaustion, the respondent submits that the same is discretionary and that the discretion could only be exercised pursuant to the provisions of the Fair Administrative Action Act which in this case was not invoked by the petitioner. The case relied on for this submission is Republic v Standards Tribunal: Harleys Limited (Interested Party)ex parteKenya Bureau of Standards [2020] eKLR

46. The respondent further submits that the petitioner has failed to disclose the constitutional provisions that were violated and has relied on the case of Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR as well as Benard Ouma Omondi &anorv Attornery General & anor [2021] eKLR

47. The respondent submits that the petitioner ought to have filed an application for contempt as he averred that orders issued by the High Court were violated and that the application ought to have been filed before the same court that issued them. The respondent has relied on the case of Republic v Kenyatta University & 2 othersex parteGatetua Macharia Kennedy [2017] eKLR as well as Samuel Kahiu v Jecinta Akinyi Soso Assistant County Commissioner Iloodokilani Ward / Division & another [2018] eKLR.

48. The respondent also submits on its jurisdiction in relation to the nomination process and states that the petitioner ought to have lodged a complaint on the nomination to the County Returning Officer in the first instance before lodging the complaint before respondent’s Disputes Resolution Committee.

The 1st Interested Party’s Case 49. The 1st interested party has opposed the petition and has given a chronology of events from when he was awarded an indirect nomination certificate by the 2nd interested party due to what he terms as his popularity ratings. He further gives a narrative of objections raised by the petitioner and how the same were resolved through a process that saw them go through the National Elections Appeal’s Board of the party, Political Parties Disputes Tribunal and eventually to the High Court where a repeat nomination process was ordered. He avers that fresh nominations were done and that the petitioner filed an appeal with the respondent which appeal was dismissed for lack of jurisdiction.

50. The 1st interested party avers that the petitioner did not lodge any complaint with the 2nd interested party’s National Elections Board or Political Parties Disputes Tribunal and on June 6, 2022, he presented his papers to the county’s returning officer for clearance.

51. The 1st interested party avers that the petition is without merit as any complaints should have been raised before Political Parties Disputes Tribunal and that the petitioner chose to boycott the nomination process and instructed his agents not to participate in the exercise and therefore, he is estopped from claiming that he was prejudiced by the process. The 1st interested party also avers that the petitioner had not particularized the irregularities he alleges occurred in polling stations during the party primaries in his petition, as such, the court should consider them as mere allegations. It has also been averred that there was no prejudice visited upon the petitioner by the name of Hon Senator David Musila’s name appearing on the ballot papers as voters knew the candidate they were voting for.

52. In his written submissions through learned counsel M/S Issa and Company Advocates, he submits that the petition is defective as it fails to set out the specific provisions of theconstitution that have been infringed. He has relied on the cases of Anarita Njeru versus Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others where the threshold of specificity when it comes to particularizing the constitutional contraventions in petitions was laid down.

53. On the jurisdiction of the Independent Electoral and Boundaries Commission Dispute Resolution Committee handling of the Petitioner’s complaint, the 1st interested party submits that the committee could not handle the dispute as the same ought to have been filed with the 2nd interested party’s National Elections Appeals Board. Alternatively, it has been submitted that the petitioner had the option of filing an objection with the Returning Officer in accordance with rule 5(1) and 8 of the Rules of Procedure on Settlement of Disputes and that had he done so, he could have had a basis of filing an appeal with the respondent but because he did not, filing a complaint directly with the respondent was premature. He has cited the case of Sammy Ndungu Waiti v Independent Electoral Boundaries Commission & 3 others [2019] eKLR relied upon by the respondent as well on jurisdiction of the Independent Electoral and Boundaries Commission and Political Parties Disputes Tribunals in handling of pre-election disputes. The 1st interested party has also cited the case of Jubilee Party of Kenya v Farah Mohamed Manzoor [2017] eKLR on the question of jurisdiction of Independent Electoral and Boundaries Commission and Political Parties Disputes Tribunal. That case involved the exclusion of the respondent’s name from the appellants party list. The court found that the respondent should have exhausted the appellant’s internal dispute resolution mechanism before filing her complaint before the Political Parties Disputes Tribunal.

54. Counsel also submits that this court lacks jurisdiction to entertain this petition as from the start, the petitioner filed a defective complaint before Independent Electoral and Boundaries Commission. Counsel also submits that this court can only deal with either an appeal or review with regards to the decision of Independent Electoral and Boundaries Commission or Political Parties Dispute Tribunals and not the petition filed herein and that the respondent failed to exhaust the 2nd respondent’s internal dispute resolution mechanism before approaching the court. Cases relied on are International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR and Gabriel Bukachi Chapia v Orange Democratic Movement & anor [2017] eKLR both on the doctrine of exhaustion.

55. Counsel has also submitted that the petitioner had all along sought for direct nominations and that he was the one who boycotted the party primaries and that he did not give specifics in his petition to substantiate the allegation that integrity of votes cast could not be verified

56. It has also been submitted that use of ballot papers containing the name of Hon Senator David Musila was occasioned by the timelines directed by court and that the petitioner was not prejudiced in that event

The 2nd Interested Party’s Case 57. The 2nd interested party had also opposed the petition though a statement dated June 10, 2022 done through learned counsel M/S KK Katisya and Company Advocates.

58. The 2nd interested party has reiterated the undisputed facts leading to the filing of this petition and that it followed all the provisions laid out in its election and nominations rules 2021 as well as the High Court’s judgment of June 3, 2022.

59. He contends that it informed the petitioner of the conduct of party primaries in good time but he chose not to participate despite knowing the timelines. He contends that the court did not place a restriction on the mode in which the party conducted its nominations and the party conducted direct nominations as was demanded by the petitioner.

60. The 2nd interested party has also raised the issue of jurisdiction and has relied on section 74 of the Elections Act which grants the political party the mandate of handling disputes relating to nominations. It avers that the respondent should have invoked the party’s internal dispute resolution mechanism or the Political Parties Disputes Tribunal before filing the petition in court.

61. The 2nd interested party contends that this petition has been overtaken by events and states that according to the respondent’s timetable, it was required to submit its candidate by May 16, 2020 for possible gazettement by June 30, 2022. On that basis, he submits that any orders interfering with the timelines would cause unconscionable complications on the respondent and the 1st and 2nd interested parties.

62. The 2nd interested party has faulted the petitioner for intending to scuttle the 1st interested party’s candidature and contends that the 1st interested party was nominated lawfully and legally nominated by the Wiper Party. In its written submissions dated June 30, 2022, the 2nd interested party supports the respondent’s contention that it lacked jurisdiction to entertain the petitioner’s complaint because the dispute involved a nomination exercise. According to the 2nd interested party, the jurisdiction of Independent Electoral Boundaries Commission could only be invoked once a nominated candidate was presented to Independent Electoral Boundaries Commission for clearance to run for an elective post.

63. The 2nd interested party submits that the respondent did not violate any constitutional provisions as alleged by the Petitioner.

64. On whether the respondent’s decision ought to be reviewed or quashed, the 2nd interested party submits that the petitioner ought to have filed substantive judicial review proceedings for the same to be considered. Counsel has also submitted that the correct forum for lodging of the petitioner’s complaint was through the party’s National Elections Appeals Board (NAEB)

65. On nomination of the 1st interested party, the 1st interested party submits that it followed due process and maintains that by virtue of section 38A of the Political Parties Act, it retains the mandate of choosing its preferred candidate. It has accused the petitioner of waiving his political rights by boycotting the party primaries, as such the court cannot come to his aid at this stage. It submits that the 1st interested party is their preferred candidate for the gubernatorial position in Kitui County.

Analysis and Determination 66. This court has set out in summary the respective position of each party in this petition. This court was under pressure to deliver Judgment within a short span of time but has given an overview of the representations made by each party. Having done that, the issues that have been raised are as follows;i.Whether Independent Electoral and Boundaries Commission had jurisdiction to hear and determine the petitioner’s complaintii.Whether this court has jurisdiction to hear and determine the Petitioniii.Whether the petition is meritorious.

67. The 2nd interested party has accused the petitioner of intending to scuttle the 1st interested party’s candidature. The question of jurisdiction is a thematic issue in this petition because the petitioner’s major complaint in this matter is that the respondent declined to exercise its jurisdiction when according to him it was well seized. The respondent and interested parties on the other hand insist that there was no jurisdiction. That issue of jurisdiction is the elephant in the room but before I look into the question of the jurisdiction, I will deal with merit.

(i) Whether The Petition Is Meritorious 68. The petitioner has complained of timelines. He says the notice and time given for the nomination exercise was too short but in all fairness was made by the court and for good reasons. The court in Civil Appeal No E312 of 2022 ordered that fresh nomination exercise be conducted within 72 hours. The judgement was delivered on June 3, 2022. The second interested party its attempt to use delegated was thwarted by the petitioner who preferred direct party nominations organizing for direct party nomination within a span of 2 days is practically a toll order. The petitioner cannot claim that he was the one affected by time limits within which to mobilize his supporters. All candidates faced the same dilemma he cannot possibly say he was the only one prejudiced.

69. Secondly, he states that the photograph of Senator David Musila appeared on the ballot papers. Though no proof has been shown in this court, I would agree with the interested party that due to amid limited timelines it was impractical for the 2nd interested party to print fresh ballot papers and the only practical thing to do was to use their ballot papers they had earlier printed.

70. In this country where party hopping is common, one would understand the predicament faced by the interested party but more importantly, this court finds that the presence of the picture of Hon Senator David Musila if at all did not prejudice any particular candidates because the party members knew who was still in the party and participating. Furthermore, it is interesting that the petitioner called his supporters to boycott the nominations exercise and still knew how the papers used in the exercise looked like. That in my view is akin to one having his cake and eating it at the same time.

71. The grievances raised in this petition regarding whether or not the court orders were adhered to by the 2nd interested party can only be entertained in the court that issued the orders and even if I was to entertain, I do not find that the nomination exercise was done outside the 72 hours’ period given by the court.The petitioner has not persuaded this court that the grievances put forward were merited because the same were not substantiated.This court also finds that the questions posed by the appellant asking for determination of this court are premature and the basis of my finding is the next issue for determination.

(ii) Whether The Respondent Had Jurisdiction To Hear And Determine The Complaint Raised By The Complainant. 72. The big question to be determined here is what was the nature or character of the complaint raised?

73. Understanding the nature of the dispute filed by the Petitioner before the Electoral Boundaries Commission will help determine whether the jurisdiction to handle the dispute lied with the Electoral Boundaries Commission, Political Parties Disputes Tribunal or the 2nd interested party’s National Elections Appeal’s Board.

74. A synopsis of the petitioner’s complaint was that the nomination of the 1st interested party and the nomination certificate issued to him were void for contravening the judgment of the high court, theConstitution and the party’s election nomination procedures and rules.

75. He claimed that he was shortchanged by the 2nd interested party as communication that was it came late and finally as such he was not able to mobilize his agents and supporters to participate in the party primaries.

76. His dispute basically revolved around the manner in which the party primaries were conducted.

77. The petitioner sought to have the commission or its Returning Officer issue orders among which were to have the nomination certificate revoked and or cancelled or alternatively order for conduct of fresh nominations or issue the Petitioner with a nomination certificate.

Jurisdiction of Electoral Boundaries Commission 78. Article 88 (e) of the Constitution provide provides for the jurisdiction of Electoral Boundaries Commission in handling of pre-election disputes as follows;‘‘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.’’

79. Jurisdiction of Independent Electoral Boundaries Commission in handling disputes is provided by the Elections Act under section 74 as follows;‘‘Settlement of certain disputes;a.Pursuant to article 88 (4) (e) of theConstitution, 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.b.An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.c.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.’’

80. I will shortly look at what “nomination’ means because that is an issue that has brought conflicting debates on the jurisdiction of Independent and Electoral Boundaries Commission and that or Political Parties Disputes Tribunal. I will first look at the procedural aspect of how disputes/complaints are processed and presented to Independent and Electoral Boundaries Commission

81. Rule 5 of the Rules of Procedure on Settlement Disputes under the Elections Act provides:"Right to lodge complaint;i.A candidate for the nomination for a political party ticket for purposes of an election under the Act may file an objection against the submission of the name of any other candidate to the returning officer.ii.The returning officer upon receipt of the complaint or objection shall consider the application and either;a.uphold the nomination by the political party;b.reject the nomination and inform the political party of the fact of that rejection and in that regard direct that a new nomination be conducted.’’

82. The commission’s mandate is regulated under rule 9 of Rules of Procedure on Settlement of Disputes. It provides as follows;"i.Any person objecting to the nomination of a candidate may file a complaint with the Commission on any of the following grounds;a.that the candidate is not qualified to be elected under any law;b.that the candidate does not have all the qualifications required under any lawc.that the candidate was convicted of an election offence at any time material to the nominationd.that conduct of the nomination process was invalide.that the candidate did not accept his nomination according to the rules promulgated by the Commission.’’

83. The above brings out two thematic areas in regards to jurisdiction of Independent Electoral and Boundaries Commission and it relates to what constitutes a ‘dispute’ and ‘nomination’ in the electoral process.

84. The Rules of Procedure on Settlement Disputes define a disputes and nominations as follows;‘‘dispute” means a complaint, challenge, claim or contest relating to any stage of the electoral process and includes an objection to the acceptance of the nomination papers of a candidate by the Returning Officer Nomination is defined as follows;“nomination” means the submission to the Commission of the name of a candidate in accordance with theConstitution and the Elections Act, 2011. ‘Nomination’ is define by the Election Act to mean the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act.’’

85. On the other hand, under the Political Parties Act, 2011 section 40, gives the jurisdiction of the Political Parties Act on the following areas to wit;‘‘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 a political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners; and(f)appeals from decisions of the Registrar under this Act;(g)disputes arising out of party primaries. (emphasis added).’’

86. In my considered view, the question of jurisdiction between Independent Electoral and Boundaries Commission and Political Parties Dispute Tribunal depends on the stage of the process of nominations of candidates in the party primaries. When you look at the definition of “Nomination” going by the above-cited rule under the Elections Act, the jurisdiction of Independent Electoral and Boundaries Commission to deal with disputes arising from nomination exercise of party primaries only kicks in when the submission of the name of the winning candidate is done to the commission. Only then, depending on grounds raised, the Independent Electoral and Boundaries Commission can exercise jurisdiction to entertain a dispute.

87. On the other hand, before submission of a winning candidate had been done, any dispute under section 40 (1) of Political Parties Act is handled by Political Parties Disputes Tribunal. It is however important to note the provision of subsection 2 of section 40 of the Political Parties Act which states;‘‘(2) Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c) or (e) unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.’’The above means that an aggrieved member of a political party has to exhaust internal party dispute resolution mechanism. If he fails to, then the doctrine of exhaustion will operate against any of his other endeavors.

88. The question that follows is then, at the time of lodging the complaint, had there been submission of the 1st interested name to the commission? In his supporting and verifying affidavit annexed to the complaint to the respondent, the petitioner was taking issue with the issuance of party nomination certificate to the 1st interested party, he did not make a mention of whether the name of the 1st interested party had been forwarded to the commission!

89. This critical and problematic issue of parallel jurisdictions to deal with electoral disputes at party primaries has been a subject of a number of litigation and courts have rendered themselves.

90. The Supreme Court in Sammy Ndungu Waity v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR which was a case revolving a dispute that arose out of nomination dispute gave guiding principles regarding the mandate of the Independent Electoral and Boundaries Commission, Political Parties Disputes Tribunal and an election court in relation to pre-election disputes including nominations as follows;‘‘So what is the interface between articles 88 (4) (e) and article 105 (1) of theConstitution as read with section 75 (1) of the Elections Act? How should we approach these provisions so as, instead of rendering any of them inoperable, we strengthen the scheme of electoral dispute resolution? The starting point in our view is to recognize the mandate of the Electoral Boundaries Commission or any other organ such as the Political Parties Disputes Tribunal, of resolving pre-election disputes, including those relating to or arising from nominations, whether such disputes revolve around the qualification of a candidate or otherwise. The next logical step is to ensure that an election court or the judicial process for that matter is not helpless when faced with a critical factor to determine the validity of an election. This twin approach ensures that article 88 (4) (e) of theConstitution is not rendered inoperable while at the same time preserving the efficacy and functionality of an election court under article 105 of theConstitution. To achieve this noble objective, we think that now is the time to issue certain guiding principles.i.All pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the Independent Electoral and Boundaries Commission or Political Parties Disputes Tribunal as the case may be in the first instance.ii.Where a pre-election dispute has been conclusively resolved by the Electoral Boundaries Commission, Political Parties Disputes Tribunals, or the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of theConstitution, such dispute shall not be a ground in a petition to the election Court.iii.Where the Electoral Boundaries Commission or Political Parties Disputes Tribunal has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of theConstitution. The High Court shall hear and determine the dispute before the elections and in accordance with the Constitutional timelines.iv.Where a person knew or ought to have known of the facts forming the basis of a pre-election dispute and chooses through any action or omission, not to present the same for resolution to the Electoral Boundaries Commission or Political Parties Disputes Tribunal, such dispute shall not be a ground in a petition to the election courtv.The action or inaction in (4) 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 theConstitution, even after the determination of an election petition.’’

91. Further to the above, it is evident from provisions of rule 5 of the Rules of Procedure on Settlement of Disputes that an aggrieved party in party primaries conducted by a particular party has to act with speed and lodge an objection against submission of any candidate to the Returning Officer in a given County. The question is- did the petitioner do so? There is no evidence shown to this court that the same was done. As I have observed above, there is also no evidence provided to show that at that point of presentation the complaint, which is the subject of this petition was filed, the nomination of the 1st interested party had been received or approved by the respondent. The petitioner also ought to have invoked the appellate trial or judicial review to challenge the decision by Independent Electoral and Boundaries Commission.

92. It is also hard to understand why the petitioner opted for the route he took in advancing his grievances. This is because in his first challenge on the process of nomination as seen from the background given above, he followed the right procedure from the party’s internal dispute resolution mechanism, then Political Parties Disputes Tribunal, before appealing to the High Court which adjudicated over the appeal upon which fresh nomination exercise was ordered. The question posed is why not follow the right procedure when aggrieved in the 1st nomination process in April and then opt to circumvent the process in the 2nd round of nomination when the rules had not changed to justify the change of process.

93. The decisions cited above, shows that the first port of call on pre-election disputes is important if a grievance is to be well addressed given the strict timelines given. This means that to determine where the dispute is to be filed, a party needs to establish whether the candidate’s name has been forwarded to Independent Electoral and Boundaries Commission or not. If not, then the dispute in my view lies in the realm of Political Parties Disputes Tribunal. In this case, the Petitioner did not indicate whether the 1st Interested party’s name had been forwarded to Independent Electoral Boundaries Commission. His position was that a certificate had been issued by the 2nd Interested party and he wanted to have it nullified/ revoked because the process through which the 2nd Interested party was declared the party candidate was flawed in his view.

94. Going by the provisions of section 41(2), the jurisdiction to entertain a dispute only crystalizes once internal mechanisms of a party has been exhausted.

95. The internal dispute resolution mechanisms of a political party need to be invoked before a party can file a complaint with the tribunal upon exhausting party mechanism of dispute resolution.

96. The 2nd interested party has in place a National Elections Appeals Board (NAEB) as provided for in its constitution at clause 6. Clause 1. 14 provides as follows;The NAEB shall hear and determine disputes arising from;i.Party electionsii.Party nominations, andiii.Party lists for nominations as members of parliament or county assembly.

97. The petitioner therefore, ought to have exhausted the internal dispute resolution mechanisms before filing his complaint with the Independent Electoral and Boundaries Commission. He has not given reasons for avoiding that legal path.

98. In the case of International Centre for Policy and Conflict & 5 others v Attorney General and 5 others [2013] eKLR the court stated that:“Where there exists sufficient and adequate mechanism to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted.”

99. In the case of Francis Gitau Parsimei & 2 others v National Alliance Party & 4 others [2012] eKLR Majanja, J observed thus:“It is also my view that article 88(4)(e) and section 74(1) of the Elections Act, 2011 provide for alternative modes of dispute resolution specific to the nomination process. This court cannot entertain nomination disputes where such a process has not been invoked or it has been demonstrated that the process has failed.”

100. The corollary of the above discourse evidently weighs against the challenge made by the petitioner herein that the respondent wrongly failed to exercise jurisdiction to determine the dispute.

101. The respondent cannot be faulted and even if the decision of the respondent was to be faulted, the right forum was to appeal against its decision to decline jurisdiction rather than the route chosen vide this petition.

Whether The Court Has Jurisdiction To Hear And Determine This Petition 102. The 2nd interested party’s constitution at clause 6. 23 provides that the decision of NEAB shall be final and binding unless set aside, varied or substituted by a decision of the Political Parties Dispute Tribunal (Political Parties Disputes Tribunal).

103. The second part of call for the petitioner should have been Political Parties Dispute Tribunal. Section 41 of the Political Parties Act which provides for the process of resolution of disputes as follows;‘‘ 41. Determination of disputes1. The tribunal shall determine any dispute before it expeditiously, but in any case shall determine a dispute within a period of three months from the date the dispute is lodged2. An appeal shall lie from the decision of the tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court.3. A decision of the tribunal shall be enforced in the same manner as a decision of a Magistrates Court.’’

104. In the case of Sammy Ndungu Waity v Independent Electoral Commission & 3 others supra, the Supreme’s guidelines speak to the jurisdiction if the High Court as follows;‘‘Where a pre-election dispute has been conclusively resolved by the Electoral Boundaries Commission Political Parties Disputes Tribunal, or the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of theConstitution, such dispute shall not be a ground in a petition to the election court.Where the Electoral Boundaries Commission or Political Parties Disputes Tribunal has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of theConstitution. The High Court shall hear and determine the dispute before the elections and in accordance with the constitutional timelines.’’

105. The position taken in the above decision clearly shows that once the decision was made by Electoral Boundaries Commission, the proper recourse for the petitioner was to apply or invoke supervisory jurisdiction this court over the quasi judicial body ie the Electoral Boundaries Commission in this case under article 165(6), or its appellate jurisdiction or challenge the decision through Judicial Review if he felt that he was subjected to an unfair or illegal process.

106. This petition was filed before the petitioner had exhausted laid down procedures for settlement of disputes which are elaborately provided under the law. In my view, the doctrine of ripeness kicks in and with that, I find that this petition was pre-mature at its inception. The doctrine of ripeness and avoidance has been a subject of discussion in courts and the courts have been consistent that where a remedy or remedies are available via alternative resolution mechanism outside the courts, those mechanisms ought to be exhausted before the court’s jurisdiction can be invoked because if there are not exhausted then these other avenues be they statutory or regulatory will lose to have meaning. In the case of Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry& others [2015] eKLR, the Court of Appeal stated as follows;‘‘It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be for a of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex parte applicants argue that this accords with article 159 of theConstitution which commands courts to encourage alternative means of dispute resolution.’’

107. A similar situation arose in another case where a 5-judge bench in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR elaborately dealt with the doctrine of exhaustion. The court stated as follows: -‘‘The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This encourages alternative dispute resolution mechanisms in line with article 159 of theConstitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the court opined thus:This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.’’

108. In the case of Faraj & 3 others v Police Service& 2 others (Constitutional Petition 165 of 2020) [2022] eKLR, Mativo, J adopted the doctrine while citing Sports and Recreation Commission v Sagittarius Wrestling Club and another [2001] (2) ZLR 501 (S) as follows;‘‘…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights...’’

109. In another Constitutional Court in Zimbabwe, in the case of Chawira & Ors v Minister of Justice Legal and Parliamentary Affairs &Ors (297 US 288, 347 (1936) it was held as follows;‘‘As we have already seen, in the normal run of things courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.’’

110. From the above, it is evident that a court will as it should look into a matter, whether constitutional or not and avoid dealing with it in the first instance particularly where another recourse is available to a litigant. A court should only deal with the question when it is ripe to do so and where a party has exhausted all avenues or where none exists. In this instance, as I have found, there were other avenues for the petitioner to seek the remedies to address his grievance and only approach this court after exhausting the other channels of dispute resolution mechanism. In the end, this court finds no merit in this petition, the same is dismissed with costs to the respondents and the interested parties.

DATED, SIGNED AND DELIVERED AT KITUI THIS 8TH DAY OF JULY, 2022. HON JUSTICE RK LIMOJUDGE