[2024] KESC 27 (KLR)

Kinyanjui & 4 others v Kalinga & 6 others (Petition (Application) E014 of 2024) [2024] KESC 27 (KLR) (Civ) (28 June 2024) (Ruling)

Neutral citation: [2024] KESC 27 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Petition (Application) E014 of 2024

MK Koome, CJ, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ

June 28, 2024

Between

Josephine Wairimu Kinyanjui

1st Applicant

Fartun Mohamed Musa

2nd Applicant

Augustine Ndegwa

3rd Applicant

Mulki Abdullahi Adan

4th Applicant

Rachael Katumbi Mutisya

5th Applicant

and

Mary Charles Kalinga

1st Respondent

Independent Electoral & Boundaries Commission (IEBC)

2nd Respondent

Khadija Ngala

3rd Respondent

Melder J Nyakiti

4th Respondent

Kengo Judy Chizi

5th Respondent

Ruwa Elizabeth Mwangola

6th Respondent

Teresia B. Muoki

7th Respondent

(Being an application for conservatory and stay orders against the Judgment and Order of the Court of Appeal in Mombasa (Murgor, Laibuta & Odunga JJA) in Election Petition Appeal No. E002 of 2023, delivered on 22nd March, 2024)

Supreme Court does not have jurisdiction to entertain an appeal on the nomination of Members of County Assembly.

The case addressed the jurisdictional competence of the Court of Appeal to hear election-related disputes concerning members of County Assemblies. The Supreme Court ruled on the challenge to the jurisdiction of the Court of Appeal, confirming its earlier precedents which denied the appellate court the authority to entertain such disputes. The decision reiterated that disputes concerning County Assembly elections, whether by nomination or direct election, must be adjudicated by the Magistrates’ Court, leaving the Supreme Court without jurisdiction in the instant application.

Reported by John Ribia

Jurisdiction– jurisdiction of the Supreme Court and Court of Appeal in electoral disputes – jurisdiction to determine disputes about county assembly elections - whether the Supreme Court had jurisdiction to entertain an appeal regarding the nomination of County Assembly members - whether the Court of Appeal’s decision striking out the election petition appeal for want of jurisdiction was in error - whether conservatory or stay orders could issue by the Supreme Court in a decision in which the Court of Appeal had declared that it had no jurisdiction to determine the dispute – Constitution of Kenya, 2010 articles 38(3), 164(3)(a), and 193(1); Elections Act (Cap 7) sections 25, and 85A; Supreme Court Act (Cap 9B) sections 23A, and 24; Supreme Court Rules, 2020 (Cap 9B Sub Leg) rule 31.

Brief facts The applicants sought conservatory orders and a stay of execution following the Court of Appeal's decision, which struck out their appeal on jurisdictional grounds. The dispute arose from the nomination of members to the County Assembly of Kwale, with the appellants claiming that the Court of Appeal erred by not determining the substantive issues and wrongfully striking out the appeal. They filed a petition at the Supreme Court, arguing that the Court of Appeal's decision contravened their constitutional right to appeal under article 164(3)(a) of the Constitution.

Issues

Whether the Supreme Court had jurisdiction to entertain an appeal regarding the nomination of County Assembly members.

Whether the Court of Appeal’s decision striking out the election petition appeal for want of jurisdiction was an error.

Whether conservatory or stay orders could be issued by the Supreme Court in a decision in which the Court of Appeal had declared that it had no jurisdiction to determine the dispute.

Held

The Supreme Court did not have jurisdiction to hear appeals related to the election of members of County Assemblies, whether through direct election or nomination.

Even if the Supreme Court had jurisdiction, the Court of Appeal had issued no executable orders since it had merely struck out the appeal on jurisdictional grounds. The Court of Appeal struck out the appeal before it on grounds that it lacked jurisdiction to entertain the matter. Therefore, no positive order existed for which conservatory or stay orders could be issued.

The applicants failed to satisfy the test for the grant of conservatory orders. The failed to demonstrate that their appeal was arguable, that failure to issue the conservatory orders ran the risk of rendering the appeal nugatory, and public interest concerns.

Petition dismissed.

Orders

The petition and the motion were struck out for want of jurisdiction.

The Kshs. 6,000/= deposited as security for costs was to be refunded to the applicants.

There were no orders as to costs.

Citations CasesKenya Board of Governors, Moi High School, Kabarak & another v Bell & 2 others Petition 6 & 7 of 2013 & Civil Application 12 & 13 of 2012 (Consolidated); [2013] KESC 12 (KLR) - (Explained)

Kinyanjui & 5 others v Kalunga & 12 others Election Petition Appeal E002 of 2023 & Election Petition Appeal (Application) E002 of 2023 (Consolidated); [2024] KECA 317 (KLR) - (Mentioned)

Munya v Kithinji & 2 others Application 5 of 2014; [2014] KESC 30 (KLR); [2014] 3 KLR 36 - (Explained)

Nuri, Hamdia Yaroi Shek v Faith Tumaini Kombe & 2 others Application 38 of 2018; [2019] KESC 77 (KLR) - (Explained)

Rai & 3 others v Rai & 5 others Petition 4 of 2012; [2013] KESC 21 (KLR); [2014] 1 KLR 685 - (Explained)

Wanjohi v Karuiki & 2 others Civil Application 6 of 2014; [2014] eKLR; [2014] 3 KLR 151 - (Followed)

StatutesKenya Constitution of Kenya articles 38(3); 164(3)(a); 193(1)- (Interpreted)

Elections Act (cap 7) sections 25, 85A- (Interpreted)

Supreme Court Act (cap 9B) sections 23A, 24- (Interpreted)

Supreme Court Rules, 2020 (cap 9B Sub Leg) rule 31 - (Interpreted)

AdvocatesMr. Nyamodi for the applicantsMs. Kagori for the 1st respondentMr. Muyundo for the 2nd respondent

Ruling

1. Upon reading the notice of motiondated March 28, 2024and filed on April 2, 2024brought pursuant to sections23A and 24 of the Supreme Court Act and rules 31 the Supreme Court Rules,2020 seeking conservatory orders staying execution of the judgment and order of the Court of Appeal delivered on 22nd March, 2024 in Election Petition Appeal No. E002 of 2023 (Mombasa) Josephine Wairimu Kinyanjui & 4 others v Mary Charles Kalinga & others, pending the hearing and determination of the intended appeal; and that costs of the application abide the result of the appeal; and

2. Upon considering the grounds on the face of the application, supporting affidavit sworn by Rachael Katumbi Mutisya on March 28, 2024 and submissions of even date filed on April 2, 2024, wherein it is contended that the Court of Appeal decision striking out the appeal for want of jurisdiction and declining to determine the substantive questions therein was contrary to article 164(3)(a) of the Constitution; and the application satisfies the test for grant of conservatory orders settled in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Application No 5 of 2014; [2014] eKLR (Munya 1 Case). Specifically, it is urged that the appeal is arguable with a high likelihood of success as it raises substantial questions of constitutional interpretation, to wit, whether the Court of Appeal, in declining to hear and determine the said questions amounts to a limitation of the applicant’s constitutional right of appeal under article 164(3) of the Constitution; whether the said decision was in deliberate disregard of articles 38(3) and 193(1) of the Constitution as read with section 25 of the Elections Act; whether it erroneously upheld the High Court’s finding thus usurping the 1st respondent’s constitutional mandate under article 88(4)(e); and whether the decision failed to adjudicate on whether a court can grant reliefs not specifically pleaded.

3. Further, the applicants contend that unless conservatory orders are granted, the appeal will be rendered nugatory to the applicants’ prejudice. They add that, unless the orders sought are granted, the 2nd respondent will declare the seats currently held by nominated Members of the County Assembly of Kwale vacant, to their detriment. To support this assertion, they cite this Court’s decision in George Mike Wanjohi v Stephen Karuiki & 2 others, SC Application No 6 of 2014; [2014] eKLR. The applicants also urge that it is in public interest for this Court to substantially pronounce itself on the Court of Appeal’s jurisdiction to hear appeals from the High Court, emanating from the election of Members of a County Assembly pursuant to article 164(3)(a) as read with section 85A of the Elections Act. In support of that plea, they rely on this court’s decision in the Munya case [supra]; and

4. Having read and considered the 1st respondent’s replying Affidavit sworn by Mary Charles Kalinga on April 9, 2024 and submissions dated April 15, 2014 and filed on 17th April, 2024, to the effect that that the application has failed to meet the yardstick for grant of conservatory orders, is unmeritorious, and ought to be struck out. To support this assertion, the 1st respondent urges that this Court has pronounced itself on the only issue for determination in the appeal before it, and that there are no new circumstances in law, to warrant the Court to depart from its findings. To buttress that submission, the 1st respondent cites this court’s decision in Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission, SC Petition No 38 of 2018; [2019] eKLR where the issue of appeals from the election of members of County Assemblies was settled and it is therefore urged that by virtue of this pronouncement, both the Court of Appeal and the Supreme Court lack the jurisdiction to hear appeals emanating from the said election; and

5. Upon reading and considering the applicants’ further affidavit, rejoinder affidavit both sworn by Rachael Katumbi Mutisya on April 22, 2024 and May 15, 2024 respectively, and submissions dated April 22, 2024, wherein they reiterate their grounds in support of the application, and additionally urge that there are exceptional circumstances to warrant this court’s intervention. To this end, the applicants submit that, unlike other appeals before the Court of Appeal where the appellate court had declined to assume jurisdiction, the court in this matter heard the appeal on substantive issues and having done so, ought to have decided all of them. It is also contended that the issue of application of the doctrine of stare decisis to defeat the instant application or appeal cannot be determined at a preliminary stage without interrogating the facts and circumstances in the appeal; and

6. Considering that before the Court of Appeal, the 1st respondent had raised a preliminary objection, that is, whether the Court of Appeal had jurisdiction to hear the appeal and while upholding the preliminary objection, the appellate court struck out the appeal without delving in the determination of the substantive issue raised therein; and

7. Cognisant of the provisions of section 23A of the Supreme Court Act, granting this Court jurisdiction to issue an order for stay of execution, an injunction, a stay of further proceedings or any other conservatory or interim orders, on such terms as the court may deem fit; and

8. Further considering this court’s guiding principles for grant of stay of execution and conservatory orders in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, SC Application No 5 of 2014 [2014] eKLR; and restated in Board of Governors, Moi High School, Kabarak & Another v Malcolm Bell, Petition Nos 6 & 7 of 2013; [2013] eKLR, to the effect that before this court grants an order for stay of execution, an appellant, or intending appellant, must satisfy the court that;i.the appeal or intended appeal is arguable and not frivolous;ii.unless the order of stay sought is granted, the appeal or intended appeal were it to eventually succeed, would be rendered nugatory; and,iii.that it is in the public interest that the order of stay be granted.

9. Appreciating that in the case of Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe, Amani National Congress & Independent Electoral and Boundaries Commission, SC Petition No 38 of 2018; [2019] eKLR, we determined as follows:‘[33]The foregoing analysis leads us to the conclusion that, in agreement with the Court of Appeal, that in the absence of an express statutory provision, no second appeals lie to the Court of Appeal, from the High Court, emanating from an election petition concerning the validity of the election of a member of the County Assembly. As this determination conclusively disposes of the appeal before us, we shall not consider the second issue.’

10. We Now Opine As follows:i.Having considered the pleadings and submissions by the parties herein, it is evident that the 1st respondent’s challenge on the court’s jurisdiction goes to the competency of the motion as well as the appeal before us. It is therefore apposite to deal with this issue before delving into the merit of the motion;ii.It is common ground that the Court of Appeal struck out the appeal before it for want to jurisdiction, guided by our pronouncement in Hamdia Yaroi Tumaini Kombe & 2 others v Faith Tumaini Kombe [supra], wherein this Court determined that the Court of Appeal lacked jurisdiction to hear an appeal from the High Court, emanating from an election petition concerning the validity of the election of a Member of a County Assembly;iii.The present motion and appeal relate to the nomination of members of a County Assembly and it is our categorical finding that, the holding in Hamdia Yaroi Tumaini Kombe applies with equal force to disputes relating to election by nomination to County Assemblies as the process of resolving such disputes start at the magistrates’ court like that of directly elected members.iv.Having so pronounced, it goes without saying that this court cannot have the jurisdiction to hear the instant motion or appeal. To sustain the Petition of Appeal having made this finding would also not be a useful venture on the part of the court or parties, and it would be in the interest of justice and expeditious disposal of cases that we do not extend the life of such a petition which is obviously premised on a misapprehension of our jurisdiction. Consequently, we find that this court has no jurisdiction to hear and determine Petition No E014 of 2024 or the instant application;v.In any event, even if this court were to determine the merits of the instant application, it is uncontested that the Court of Appeal simply struck out the appeal before it on grounds that it lacked jurisdiction to entertain the matter. Accordingly, the appellate court did not issue a positive order capable of execution, to warrant grant of stay or conservatory orders. The Motion would have therefore failed to satisfy the principles established in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [supra] and was one for dismissal.

11. On Costs, in the case of Jasbir SinghRai & 3 Others v Tarlochan Singh Rai Estate of & 4 others, SC. Petition No 4 of 2012; [2013] eKLR, we settled that costs follow the event and that the court may in appropriate cases exercise discretion and decide otherwise. In the circumstances, having found that we have no jurisdiction to address any of the issues raised in both the petition of appeal and the motion before us, we shall exercise discretion and order that there shall be no order as to costs.

12. Consequently, and for reasons aforesaid, we make the following orders:i.The Petition of Appeal No. E014 of 2024 dated March 28, 2024 and filed on April 2, 2024, be and is hereby struck out for want of jurisdiction;ii.The notice of motion dated March 28, 2024 and filed on April 2, 2024, be and is hereby struck out;iii.We hereby direct that the sum of Kshs 6,000 deposited as security for costs in the appeal herein be refunded to the applicants; andiv.There shall be no order as to costs.

13. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JUNE, 2024. ...........................................M. K. KOOMECHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT OF KENYA............................................P. M. MWILU M. K. IBRAHIMDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT............................................S. C. WANJALAJUSTICE OF THE SUPREME COURT............................................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT............................................I. LENAOLAJUSTICE OF THE SUPREME COURT............................................W. OUKOJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA