[2022] KEHC 10148 (KLR)

Kioko v Yusuf (Sued as Returning officer Mombasa) & 3 others (Petition E027 of 2022) [2022] KEHC 10148 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10148 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition E027 of 2022

OA Sewe, SM Githinji & A. Ong’injo, JJ

July 13, 2022

IN THE MATTER OF ARTICLE 3, 10, 20, 23, 38(2) AND (3), 47, 50, 75, 84, 88(4), 165(3) (d) (i) and (ii), 165(6) and (7), 180(2), 193, 249, 258 AND 259(1) OF THE CONSTITUION AND IN THE MATTER OF THE SECTION 22 AND 74 OF THE ELECTIONS ACT, 2011 AND IN THE MATTER OF THE FAIR ADMINISTRATION ACTION UNDER ARTICLE 47 OF THE CONSTITUTION

Between

Mike Sonko Mbuvi Gideon Kioko

Petitioner

and

Swalha Ibrahim Yusuf (Sued as Returning officer Mombasa)

1st Respondent

IEBC Dispute Resolution Committee

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Wiper Democratic Movement

4th Respondent

Judgment

The Petitioner 1. The Petition herein is dated 22nd June, 2022. It was filed Mike Sonko Mbuvi Gideon Kioko (hereinafter “the Petitioner”) pursuant to Articles 3, 10, 20, 23, 38(2) and (3), 47, 50, 75, 84, 88(4), 165(3) (d) (i) and (ii), 165(6) and (7), 180(2), 193, 249, 258 and 259(1) of the Constitution of Kenya, 2010 for the following orders:a)A declaration that the 1st and 2nd Respondents have violated the rights of the Petitioner under Articles 20, 27, 38(2) and (3), 47(2), 50(2), 180(2) as read with Article 193(3) and hence acted ultra vires the Constitution of Kenya.b)A declaration that the 1st and 2nd Respondents have abdicated and violated Articles 3, 10, 47, 50(2), 249(1) and 259(1) of the Constitution of Kenya.c)A declaration that the Petitioner is duly qualified under Article 180(2) as read with Article 193(3) of the Constitution, as a candidate for the seat of Governor, Mombasa County, in the forthcoming elections slated for 9th August, 2022. d)An Order for Injunction restraining the 4th Respondent from nominating any other candidate for the position of Governor Mombasa County other than the Petitioner.e)An Order for Certiorari to quash the decision of the 1st and 2nd Respondents disqualifying the Petitioner as a candidate for the position of Governor Mombasa County in Complaints No. 127 of 2022 and No. 136 of 2022. f)An Order of Mandamus directed at the 1st Respondent to accept the nomination papers submitted by the Petitioner herein.g)Any other order or relief as the Court may deem fit and just to ensure that law and order and constitutionality is observed.h)Cost of the Petition.

2. The background to the Petition is well set out in the affidavit of the Petitioner, sworn on 22nd June 2022, wherein he averred that he was nominated by Wiper Democratic Movement Party as its candidate for the Mombasa gubernatorial seat for the forthcoming General Elections to be held on the 9th August, 2022. He stated that a Schedule issued by the 3rd Respondent on the 7th June, 2022 indicated that he was to submit his nomination documents between 2. 00 pm and 4. 00 pm on 7th June 2022. He added that on the 7th June, 2022 at 2:30 pm, he presented himself with all the requisite documents as per the Checklist supplied by the Independent Electoral and Boundaries Commission (the 3rd Respondent herein).

3. At paragraph 7 of his affidavit, the Petitioner set out the list of documents he was required to present, and which he presented to IEBC, namely:a.Nomination Paper for Election of County Governor (Form 17)b.Certificate of Nomination by Wiper Democratic Movementc.Petitioner’s Original and Certified Copy of IDd.Certified copy of the Pin certificatee.Copies of IDs of two supportersf.Statutory Declaration for purposes of Nomination for Parliamentary and County Elections (Form 19)g.Self-Declaration Form by EACCh.Certified Copy of the Degree by Commissioner for Oathsi.Certified Copy of the Diploma by Commissioner for Oathsj.Certified copy of the KCSE certificate by Commissioner for Oathsk.Certified copy of the KCPE certificate by Commissioner for Oathsl.Tax Compliance certificatem.Police clearancen.Helb clearance certificateo.Deed poll on change of namesp.The Electoral Code of conductq.Bankers Cheque of Kshs. 50,000/-r.Draft Campaign Schedule

4. The Petitioner further deposed that, at 3. 30 pm the 1st Respondent purported to change the Checklist by introducing a new requirement; namely, that he was required to submit an Original Degree together with a copy thereof duly certified from the institution of issue; which was Kenya Methodist University(Kemu). The Petitioner further contended that, at the same time, the 1st Respondent declined to admit pleadings and correspondences from the Supreme Court of Kenya to support his assertion that there was a pending appeal in connection with his impeachment.

5. Thus, it was the assertion of the Petitioner that, despite presenting his original degree and a certified copy of the same, at 3. 38 pm, he was disqualified from participating in the upcomping General Elections on the following three grounds: -a.Failure to present an Original Degree Certificateb.Failure to present a certified degree copy of the said certificate and;c.Breach of Article 75 of the Constitution of Kenya.

6. According to the Petitioner, it appeared to him that the 1st Respondent had a pre-determined mind to lock him out despite presenting his papers. Thus, being dissatisfied with the decision of the 1st Respondent, he lodged a complaint with the 2nd Respondent on the 8th June, 2022, reiterating his stance that he had satisfied the nomination criteria set by the 1st Respondent for the forthcoming General Elections. He stated that despite placing all facts/evidence before the 2nd respondent, including evidence confirming that he had a pending appeal before the Supreme Court, the 2nd Respondent upheld the erroneous decision of the 1st Respondent.

7. The Petitioner further averred that the 1st 2nd and 3rd respondents specifically created additional requirements, such as the requirement for original degree certificate and a copy certified by the issuing institution, with a view of disqualifying him. He stated that, although he was able to secure a certified copy of the degree from KEMU at 3. 59 pm via Whatsapp while seated at the Nomination Desk and shared the same with the 1st Respondent, she insisted on getting an email copy which was duly sent and receipt acknowledged by the 1st Respondent at 4. 42 pm on 7th June 2022.

8. It was therefore the averment of the Petitioner that, having presented himself before the 1st Respondent between 2pm and 4pm, he ought not to have been disqualified simply because the the clearance process spilled over beyond the set timelines. He added that the entire process was geared towards denying him the right to vie for the gubernatorial seat in Mombasa; and that this explained why despite receiving his original degree and a certified copy thereof, the 1st Respondent nevertheless she made a finding that the said documents had been submitted out of time and upheld a non-existent requirement to lock him out from contesting in the August General Elections.

9. The Petitioner deposed that, as far as he was aware none of the other governor aspirants with local university degrees were subjected to the requirement of having the copies of their degrees certified by the institutions of issue. He added that all the other aspirants had their degrees certified by an Advocate of the High Court of Kenya and so no reason why his case was treated differently.

10. In the same vein, the Petitioner reiterated that it was unreasonable for the 1st, 2nd and 3rd respondents to dismiss his assertion that an appeal was pending at the Supreme Court in connection with his impeachment since the 3rd Respondent is a party to the said case in which correspondences have been exchanged and directions given; all of which that were well within its knowledge. He therefore asserted that the 2nd Respondent’s decision was contrary to Article 193(3) of the Constitution. He added that the mandate of the 1st, 2nd and 3rd Respondents under Article 249 of the Constitution was facilitate his clearance as a candidate, having complied with the regulatory, statutory and/or institutional requirements for clearance as a candidate for Governor, Mombasa County.

11. The Petitioner also complained that, by its decision in Complaint No. 136 of 2022: Wiper Democratic Party v County Returning Officer Mombasa, the 2nd Respondent purported to disenfranchise him by directing the 4th Respondent to nominate an alternative candidate within 72 hours. According to the Petitioner, that decision is self-defeating and contradictory in so far as it was intended to dictate the nomination process on basis of timelines; a ground that is not reasonable in law.

12. The Petitioner therefore concluded his averments by reiterating that:a.The 1st Respondent acted unreasonably, illogically and unfairly when she rejected a copy of his degree as certified by an Advocate and thus violated his rights under Article 3, 10, 20, 38 and 47 of the Constitution of Kenya, 2010. b.His rights under Article 3, 10, 47, 180(2), 193(3), 249(1) and 259(1) of the Constitution of Kenya ,2010 were violated by the 1st and 2nd Respondent when they rejected his nomination papers based on Article 75 and/or Chapter Six of the Constitution of Kenya.c.There being an appeal pending before the Supreme Court in connection with his impeachment, the rejection of his nomination papers under Article 75 of the Constitution was in contravention of Article 47, 50(2), 180(2) as read with Article 193(3) of the Constitution of Kenya, 2010. d.The 2nd Respondent did not address itself to the question of whether he had breached Article 75 of the Constitution and therefore abdicated its duty and/or obligation as provided under Article 3, 10, 47, 50, 88(4), 249, 259(1) of the Constitution and Section 74 of the Elections Act.e.The 1st Respondent breached Article 27 of the Constitution and Regulation 47 of the Elections (General) Regulations, 2012, as the requirement that he presents a copy of the degree certified by the issuing institution was specific to him; and that in affirming the 1st respondent’s decision to disqualify him for failure to provide an original degree and a certified copy thereof by institution of issue, the 2nd Respondent was in violation of Article 3, 10, 249(1) and 259(1) of the Constitution.f.He appeared before the 1st Respondent within the stipulated timelines and therefore the 2nd Respondent erred by upholding the decision to disqualify him, and thus violated Article 3, 10, 47, 50, 249(1) and 259(1) of the Constitution.g.The 2nd Respondent disregarded pleadings filed by his Counsel and thus breached the principles of natural justice as espoused under Article 7 and 50 of the Constiution of Kenya, 2010.

The ResponsesThe 1st and 3rd Respondents 13. The County Returning Officer, Mombasa County, Swalhah Ibrahim Yusuf, who was impleaded herein as the 1st Respondent, opposed the Petition through a Replying Affidavit sworn on 1st July, 2022, which she swore on her own behalf and on the 3rd Respondent. According to Ms. Yusuf, on the 20th January, 2022, the 3rd Respondent published a notice vide Gazette Notice No. 434 dated 19th January, 2022 with the objective of providing information on the process and timelines for the presentation of nomination papers for the seat of County Governor in the General Elections scheduled for the 9th August, 2022.

14. The 1st Respondent further averred that sometime in or about April, 2022, the Petitioner declared his intention to contest for the seat of Governor, Mombasa County, on the 4th Respondent’s ticket. She added that she was aware that the Petitioner served as the Governor of Nairobi City County from 2017 when he was elected until 17th December, 2020 when he was impeached from office by the Senate for i) gross violation of the Constitution; ii) Abuse of Office; iii) gross misconduct; and crimes under national law. She further deposed that she was aware that both the High Court and Court of Appeal had upheld the Senate’s Resolution to impeach the Petitioner.

15. The 1st Respondent’s also deposed that sometime in or about April, 2022, the 4th Respondent directly nominated the Petitioner and forwarded his name to the 3rd Respondent as its gubernatorial candidate, Mombasa County. She indicated that vide a letter dated 18th May, 2022, the 3rd Respondent wrote to the Ethics and Anti-Corruption Commission (“the Interested Party herein”) forwarding a list of prospective candidates, including the name of the Petitioner, for the various elective positions in the general elections, seeking to know whether the aspirants satisfied the constitutional dictates as to leadership and integrity.

16. That on the 31st May, 2022, the Interested Party responded to the 3rd Respondent’s letter and enclosed a report showing that the Petitioner was impeached by Senate, and that the said decision had been affirmed by the High Court and Court of Appeal. She added that the report indicated that the Petitioner had been charged and arraigned in court for Conflict of Interest, Abuse of Office, Money Laundering and Conspiracy to defraud vide ACC No. 31 of 2019, ACC No. 32 of 2019 and ACC No. 1 of 2020.

17. The 1st respondent averred that upon receipt of the report by the Interested Party, the 3rd Respondent issued a media release on the 4th June, 2022, to the general public on the status of the aspirants’ compliance with Chapter six of the Constitution. She pointed out that, through the media release aspirants were informed, inter alia, of the requirements under Section 22(2) of the Elections Act, and in particular that where degree certificate was a requirement, candidates were to present both the original as well as copy of the certificate duly certified by the issuing university.

18. At paragraphs 17, 18, 19 and 20 of her affidavit, the 1st Respondent deposed further that, the said media release indicated that aspirants impeached from public office were disqualified from contesting in the elections by virtue of Article 75 (3) of the Constitution. She added that the Petitioner was among the three aspirants mentioned in the media release as having been disqualified under this category of aspirants.

19. The 1st Respondent further stated that on the 18th May, 2022 a pre-nomination sensitization meeting and training for gubernatorial aspirants for Mombasa County was held, in which aspirants were reminded of the documents required and shown the process of clearance and registration of candidates for the 2022 General Elections. The 1st Respondent also mentioned that one Mr. Ochieng Bramwel, a representative of the Petitioner, was present at the said pre-nomination sensitization meeting in which dates and timelines were allocated to the various candidates for purposes of presentation of nomination papers for clearance.

20. At paragraphs 25 and 26 of her affidavit, the 1st Respondent averred that, on 17th May, 2022, Hon. Mativo, J in High Court Constitutional Petition No. E019 of 2022: Haki Yetu & 2 Others vs Mike Sonko Mbuvi Gideon Kioko & 2 Others, issued an interim order restraining the 3rd Respondent from processing and clearing the Petitioner to contest for the seat of Governor, Mombasa County; and that the said order was thereafter lifted on 6th June, 2022 by the three judge bench in High Court Constitutional Petition No. E090 of 2022 (As consolidated): Okiya Omtata Okoiti & 15 Others vs The Hon. Attorney General & 23 Others. She therefore explained that it was the above court orders that informed the decision to allocate the Petitioner time to present his nomination papers to be between 2:00 pm to 4:00pm on the 7th June, 2022, which time allocation was not objected to.

21. It was therefore the averment of the 1st Respondent that, despite the Petitioner being aware of the requirements, he appeared before her on the 7th June, 2022 without his original university degree certificate and a duly certified copy of the degree; and that he ended up availing his original degree certificate and a certified copy thereof at 4:42 pm, outside the timelines gazetted by the 3rd Respondent in the Gazette Notice No. 434. She therefore averred that she justifiably indicated on the nomination forms that the Petitioner’s nomination papers were not accepted for the reason that the original and certified university copy thereof were presented out of time.

22. The 1st Respondent further deposed that an additional reason for the Petitioner’s disqualification and the rejection of his nomination papers was the fact that the Petitioner had not met the requirements set out in Article 75 of the Constitution on leadership and integrity having been impeached on the 17th December 2020. And, in response to the Petitioner’s assertion that he ought to have been cleared under Article 180(2) as read with Article 193(3) of the Constitution, which provide that a person is not disqualified to contest as a County Governor, until and/or uless all possibility of Appeal or Review of the impeachment has been exhausted, the 1st Respondent contended that the Petitioner had failed to present any documents to support his assertion of the existence of an Appeal within the stipulated timelines.

23. While acknowledging that she received a letter from the firm of Messrs Kirui Kamwibua and Co. Advocates indicating that there was an appeal pending before the Supreme Court, being Petition No. 11 (E008) of 2022, the 1st Respondent asserted that the said letter was availed at 4:31 p.m, outside the timelines allocated to the Petitioner. She added that the Petitioner did not provide any evidence to demonstrate that indeed there was an appeal pending before the Supreme Court. She further deposed that on the 8th June, 2022 the Petitioner, visited her office and presented letters dated 8th June, 2022; one from the firm of M/s Nyamu & Nyamu Advocates addressed to the Deputy Registrar of the Supreme Court requesting for confirmation in writing that an Appeal was pending; and the other from the Registrar of the Supreme Court addressed to M/s Nyamu & Nyamu Advocates confirming the pendency of the Petition and indicating that it was scheduled for mention on the 10th June, 2022, before Deputy Registrar for directions.

24. Thus, it was the averment of the 1st Respondent that the Petitioner was not the only candidate whose nomination papers were rejected.

25. At paragraph 44 of her affidavit, she furnished a list of candidates who presented themselves for clearance between the 4th June, 2022 and 7th June, 2022 for Mombasa County gubernatorial seat as hereunder: -a.Daniel Munga Kitsao - Independent candidateb.Hassan Omar -United Democratic Alliance Partyc.William Kingi - Pamoja African Alliance Partyd.Hezron Awiti - Vibrant Democratic Partye.Anthony Chitavi - United Democratic Partyf.Said Abdalla - Usawa Kwa Wote Partyg.Abdulswamad S Nassir -Orange Democratic Movementh.Shafii Makazi -United Party of Independent Alliancei.Mike Mbuvi Sonko - Wiper Democratic Movement

26. In the premises, the 1st Respondent endeavoured to show that one Anthony Chitavi Mkhala was likewise found to be ineligible and that he, too, filed a complaint before the 2nd Respondent, being Complaint No. 323 of 2022: Anthony Chitavi Mkhala v Mombasa County Returning Officer. She added that she was aware the Petitioner filed a Complaint No. 127 of 2022 and contested her decision to disqualify him; and that, in both Complaints, the 2nd Respondent affirmed her decision to disqualify the complainants.

27. In connection with the 4th Respondent, the 1st Respondent deposed that, after the dismissal of the Petitioner’s Complaint by the 2nd Respondent, the 4th Respondent nominated Ali Menza Mbogo as its candidate for Governor and the Petitioner as his Deputy, vide a letter dated 24th June, 2022, in an attempt to comply with the decision of the 2nd Respondent. She therefore urged this court to dismiss the Petition herein for lack of merit as the Petitioner has:a.failed to demonstrate that he satisfied the requirements for eligibility and qualification for election to the position of County Governor, Mombasa County;b.failed to demonstrate any alleged infringement and/or violation of his fundamental rights;c.failed to satisfy the threshold requirements for the grant of the orders sought.

28. She accordingly prayed that the Petition be dismissed as it amounts to an invitation by the Petitioner for the Court to usurp the administrative and quasi-judicial functions of the 3rd Respondent.

The 2nd Respondent 29. The 2nd Respondent opposed the Petition vide the Grounds of Opposition dated 3rd July, 2022 and a Replying Affidavit sworn by Mr. Chrispine Owiye, the 3rd Respondent’s Director in charge of Legal Affairs. In his affidavit, Mr. Owiye averred that he was aware the Petitioner was an aspirant for the position of Governor, Mombasa County, and that on the 7th June, 2022, he presented his papers to the 1st Respondent who rejected his nomination for the reasons that he had failed to present the original degree, a certified copy of the said degree and for the reason that he was in breach of Article 75 of the Constitution of Kenya.

30. Mr. Owiye further, averred that thereafter the Petitioner lodged a dispute before the 2nd Respondent herein dated 8th June 2022; which Complaint was heard and dismissed on 20th June, 2022. Mr. Owiye added that he was aware that, in his Complaint, the Petitioner alleged that there was a subsisting appeal against his impeachment pending at the Supreme Court and hence he was entitled to benefit from the provisions of Article 193(3) of the Constitution and ought therefore to have been registered as a candidate.

31. According to Mr. Owiye, the competence of the appeal at the Supreme Court has been challenged vide an application dated 1st June, 2022, which seeks the striking out the said appeal on the grounds that it had been filed out of time. Hence he posited that no valid appeal exists. Further, it is averred that the Petition of Appeal before the Supreme Court is not “an appeal or review” as envisaged by Article 193(3) of the Constitution. Thus, the 2nd Respondent asserted that the Petitioner cannot rely on Article 193(3) of the Constitution for purposes of clearance to vie for elections or be appointed to any state office.

32. Lastly, Mr. Owiye deposed that he was aware that the Petitioner delivered some of his papers to the 3rd Respondent after 4:00pm, outside the time allowed by law. He therefore took the position that, since the decision of the 2nd Respondent was based on the evidence that was placed before it, the Petition lacks merit and should be dismissed.

The 4th Respondent 33. On its part, the 4th Respondent supported the Petition herein. It relied on the Replying Affidavit sworn on 1st July, 2022 by its Secretary General, Shakila Abdalla. Ms. Abdalla averred that on the 20th June, 2022, the 2nd Respondent dismissed Complaint No. 136 of 2022: Wiper Democratic Movement v Returning Officer, Mombasa County and Others without considering it on its merits on the ground that it had already rendered a decision in Complaint No. 127 of 2022 Gideon Mike Sonko v Returning Officer, Mombasa County. The 4th Respondent asserted that, as it was not a party to Complaint No. 127 of 2022, it rights and the rights of the Petitioner under Article 10, 20, 27, 28, 38, 47 and 81 the Constitution were thereby infringed.

34. Regarding the 2nd Respondent’s decision requiring the 4th Respondent to submit the names of another nominee for the position of Governor, Mombasa County, within 72 hours, Ms. Abdalla averred that it was not only irrational, in bad in faith and grossly unfair, but was also calculated to prejudice the rights of the Petitioner herein. She posited that the said decision is null ab initio for being contrary to Section 38G of the Political Parties Act that requires that a list of the names of delegates to participate in the nomination exercise be submitted to the Registrar of Political Parties at least seven (7) days prior to the date of the nomination exercise.

35. Ms. Abdalla further averred that the decision of the 2nd Respondent, which was essentially based on the fact that the Petitioner was 42 minutes late in submitting his university degree and certified copies thereo, is unreasonable as it purported to disqualify the Petitioner on the basis of time of the presentation of his degree certificate. She added that, a degree certificate as provided for under Section 22 of the Elections Act, is no longer a requirement for gubernatorial candidates as the said requirement was declared unconstitutional in the case of County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party)(Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated)) [2021] KEHC 304 (KLR) (Constitutional and Human Rights) (15 October 2021) (Judgment).

36. It was further deposed, on behalf of the 4th Respondent, that the decision of the 2nd Respondent in Complaint No. 136 of 2022 was manifestly illegal in so far as it was based on Regulation 47(2) of the Election (General) Regulations, 2012; a wrong provision of the Law. She added that there was nothing in law or fact that warranted the disqualification of the Petitioner as its nominee candidate to vie for the Mombasa gubernatorial seat; and neither were such recommendations made by the Interested Party. Thus, the 4th Respondent asked the court to quash the decision of the 1st and 3rd Respondents for being illegal, unreasonable and contrary to express provisions of the law.

Interested Party’s Reply 37. The Interested Party responded to the Petition vide a Replying Affidavit sworn on 2nd July, 2022 by its Deputy Director in charge of Ethics and Compliance, Mr. Patrick Owiny. He averred that it is the exclusive mandate of the 3rd Respondent to determine the eligibility of a candidate who wishes to contest for an elective post by virtue of Article 88(4) (e) & (f) of the Constitution and Sections 13 (2) of the Leadership and Integrity Act. He further deposed that he is aware that on the 7th June, 2022 the 1st and 3rd Respondents barred/disqualified the Petitioner from contesting for the position of Governor, Mombasa County on the grounds that he failed to present an original degree certificate from the relevant University and breach of Article 75 of the Constitution.

38. At paragraph 11 of his affidavit, Mr. Owinyi averred that he is aware that the Petitioner was impeached by the Nairobi County Assembly vide a resolution made on the 3rd December, 2020; a decision that was upheld by the Senate on the 17th December, 2020. He further averred that it was within his knowledge that the Petitioner challenged his impeachment by way of a Constitutional Petition No. E425 of 2020 (Consolidated with Constitutional Petition No. E014 of 2021) Mike Sonko Mbuvi Gideon Kioko & another v Clerk, Nairobi City County Assembly & 9 others [2021] eKLR; which Petition was dismissed and the impeachment affirmed. He further deposes that he was aware that the Petitioner then moved to the Court of Appeal in Kioko v Clerk, Nairobi City County Assembly & 11 others (Civil Appeal E425 of 2021) [2022] KECA 405 (KLR) (Constitutional and Human Rights) (4 March 2022) (Judgment), and that his appeal was similarly dismissed.

39. Mr. Owiny further averred that, while he was aware that the Petitioner’s appeal to the Supreme Court is pending hearing and determination, that appeal cannot be on the facts. Further, that in so far as the Supreme Court had not determined the said Appeal, there was a risk that if the Petitioner is cleared and the Supreme Court subsequently rejects his appeal for lack of merit, the Petitioner may, despite lacking integrity, be nominated and possibly elected, contrary to the principles of the Constitution.

40. On behalf of the Interested Party, Mr. Owinyi asserted that the Petitioner is disqualified from holding any other state office by operation of Article 75(3) of the Constitution that provides that once a person has been removed from office for contravening Chapter Six, he is disqualified from holding any state office. He added that the threshold in Articles 73(2), 75(3), 99(3) and 193(3) of the Constitution and Section 13 of the Leadership and Integrity Act is distinct from criminal culpability is that it is much lower and is not based on the criminal standard of beyond reasonable doubt.

41. At paragraph 25 of his Affidavit, Mr. Owiny averred that the Petitioner’s impeachment raises integrity questions and therefore warrant that he be declared ineligible to vie for the August, 2022 elections. Further, he avers that the Petitioner is facing charges corruption and economic crimes in ACC No. 31 of 2019, ACC No. 32 of 2019 and ACC No. 1 of 2020 as follows:a)Four charges of conspiracy to commit corruption contrary to Section 47A, 42 ACECA, 2003 and Section 4 POCAMLA, 2009;b)Four Charges of conflict of interest for knowingly acquiring a private interest in a contract connected with a public body, contrary to Section to Sections 47A, 42 of the ACECA and Section 4 of the POCAMLA, 2009;c)Four charges of Money Laundering contrary to Section 3(b) (i) as read with Section 16 of the Proceeds of Crime and Anti-Money Laundering Act, No. 9 of 2009; andd)Four charges of acquisition of proceeds of crime contrary to Section 4 of the Proceeds of Crime and Anti-Money Laundering Act, 2009.

42. Mr. Owiny concluded his affidavit by asserting that Petitioner does not meet the integrity test required under Article 193(1) (b) and Article 10 of the Constitution and is therefore not eligible to be registered as a candidate for election and/or selected for appointment to a state or public office. He urged the Court to dismiss the Petition.

The Petitioner’s Supplementary Affidavit 43. In a Supplementary Affidavit filed with the leave of the Court, the Petitioner reiterated the contents of the Petition and the Supporting Affidavit and maintained his stance that he presented his documents to the 1st Respondent in time; and that the requirement for an original degree, being a creation of the 1st and 3rd Respondents, cannot be the basis for his disqualification. He further stated that Article 75 cannot be read in isolation, but must be read with Article 193(3) of the Constitution to mean that, as long as his appeal is pending before the Supreme Court, he is eligible to vie for an elective post.

The 1st and 3rd Respondent’s Further Replying Affidavit 44. In the Further Affidavit sworn on 3rd July, 2022 by Swalhah Ibrahim Yusuf, she averred that qualifications and nomination requirements for aspirants for all elective positions including but not limited to the seat of governor and deputy governor, were published on the 3rd Respondent’s Candidates Management System (CRMS). She also mentioned that the CRMS further provided for the grounds for invalidation of an aspirant’s nomination, clearance and registration, which information was further provided to all candidates during the pre-nomination sensitization meeting and training exercise. She maintained her posturing that the by virtue of the Petitioner’s impeachment he is neither eligible nor qualified to contest for the Governor seat, Mombasa County.

The 4th Respondent’s Further Affidavits 45. The 4th Respondent filed two Further Replying Affidavits sworn by Shakila Abdalla on the 4th July, 2022 and 6th July, 2022. She averred that the 1st and 3rd Respondents rejected the 4th Respondent’s nominee as directed in the decision read in Complaint No. 136 of 2022.

Submissions The Petitioner’s Submissions 46. In the Petitioner’s written submissions dated 6th July, 2022 the following issues were raised for determination: -a.Whether the Petitioner’s rights under Articles 20, 27, 38(2) and (3), 47(2), 50 (2), 180(2) as read with Article 193(3) were violated;b.Whether the Petitioner is duly qualified under Article 180(2) as read with Article 193(3) of the Constitution as a candidate for the seat of governor, Mombasa County in general elections scheduled for 9th August, 2022. c.Whether the Petitioner merits the grant of reliefs of injunction, certiorari and mandamus;d.Orders as to costs.

47. The Petitioner submitted, in the main, that his rights were violated by the actions of the 1st Respondent when she abritraily changed the checklist and introduced new requirements not envisaged in law. It was also argued by counsel for the Petitioners that the 1st Respondent’s decision to bar him from vying for elections amounted to a violation of the rights of voters under Article 38 of the Constitution to elect a leader of their choice. In this regard, the Court was referred to County Assembly Forum & 6 Others v Attorney General & 2 Others: Senate of the Republic of Kenya(Interested Party) (Constitutional Petitions E229, E225, E226, E249 and 14 of 2021 (Consolidated) [2021] KEHC 304 (KLR) (Constitutional and Human Rights (15 October [2021] eKLR.

48. Learned Counsel for the Petitioner further submitted that the Petitioner’s rights under Article 20, 27, 38(2) and (3), 47(2), 50(2) and 180 (2) as read with Article 193(3) Constitution were violated by the 1st Respondent in so far as he was not accorded a fair hearing before the finding that he had breached Article 75 of the Constitution was arrived at by the 1st Respondent. Counsel argued that, for one to be eligible to vie for the position of Governor, one had to meet the requirements of Article 180(2), 193 (1) of the Constitution as read with Section 22 (2) of the Elections Act, 2011. In addition, one must possess a degree from a University recognized in Kenya. Thus, from the standpoint of Regulation 47 of the Elections (General) Regulations, all that was required of the Petitioner was to submit certified copies of his academic qualifications, including his degree.

49. It was therefore the submission of learned counsel for the Petitioner that Regulation 47(2) of the Elections (General) Regulations only requires certification by the issuing institution in instances where the body that issued the certificate is not based in Kenya. Hence, counsel urged the Court to find that, in demanding that the Petitioner avail copies of degree as certified by the issuing institution, the 1st Respondent violated the Petitioner’s right to equal treatment. They added that, there was no such requirement in the press statement dated 4th June, 2022.

50. Learned counsel for the Petitioner also pointed out that, since Regulation 43(5) of the Elections (General) Regulations gives the Returning Officer some latitude to accept nomination papers despite some infraction of the rules, the 1st Respondent ought to have extended that latitude to the Petitioner, granted the peculiar circumstances in which he found himself.

51. Lastly, counsel for the Petitioner submitted that, as his Petition is grounded under Article 165 (6) of the Constitution on the supervisory jurisdiction of the High Court over surbodinate courts and/or bodies or authorities that perform judicial or quasi- judicial functions for the Orders of Certiorari and Mandamus, this court has the jurisdiction to give effect effect to Article 38(2) and (3) of the Constitution to grant the orders prayed for herein. They consequently urged that the decision of the 2nd Respondent upholding the 1st Respondent’s decision to disqualify him be quashed and the 1st and 3rd Respondents be compelled to accept his nomination papers. They prayed that the Petition dated 22nd June, 2022 be allowed and that the Petitioner be awarded costs for the agony he has been subjected to by the 1st and 3rd Respondents. They relied on the case of International Centre for Policy and Conflict v Attorney General & Others [2013] eKLR to support his stance for costs.

The 1st and 3rd Respondents’ submissions 52. The 1st and 3rd Respondents filed written submissions dated the 5th July, 2022 and submitted that Article 180(2), 193(1) of the Constitution as read with Section 22(2) of the Elections Act set out the eligibility requirements for a County Governor. A County Governor should be eligible for elections as a Member of County Assembly but must satisfy the requirement that they be holders of a degree from a university recognized in Kenya. Further, the 1st and 3rd respondent submitted that under Regulation 47 of the Elections (General Regulations), 2012 an aspirant must submit to the Commission certified copies of certificates of the educational qualification.

53. The Court was urged to find that on the 4th June, 2022, the 3rd Respondent made public the information as to the requirements to be satisfied by aspirants for the various positions; and in particular the information that aspirants with degrees from universities within Kenya had to produce the original degree copy as well as a certified copy from the issuing institution confirming the copy to be a true copy of the original.

54. The 1st and 3rd Respondents submitted that despite all this information, the Petitioner provided neither his original degree certificate nor a duly certified copy before close of nomination at 4: 00 p.m on the 7th June, 2022.

55. On the issue of the appeal, the 1st and 3rd Respondents submitted that the Petitioner failed to prove that he had an appeal pending before the Supreme Court within the stipulated time of 4:00 p.m. The 1st and 3rd Respondent relied on the cases of Francis Chege Wachira v Independent Electoral & Boundaries Commission [2017] eKLR and Republic v Independent Electoral and Boundaries Commission & another exparte Shem Odongo Ochuodho [2017] eKLR to emphasize the importance of adherence to timelines and directions in presentation of nomination papers.

56. The 1st and 3rd Respondents reiterated their stance that they acted within the confines of the law when they declined to clear the Petitioner as he had not satisfied the moral and ethical requirements under Article 193(1) of the Constitution as read with Section 25(1) of the Elections Act. Further, it was submitted that the Petitioner had not met the moral and ethical standards under Section 13 of the Leadership and Integrity Act as he was impeached and thus fell short of the provisions Article 193(1) which are self-governing. It was therefore the contention of the 1st and 3rd Respondents that they were under no obligation, under Article 193 (3) of the Constitution to consider that an appeal or Review was pending before declining to clear the Petitioner. The 1st and 3rd Respondents added that the process of removal of a Governor is clear under Article 181; and is therefore not subject to Article 193(3) of the Constitution.

57. Counsel for the 1st and 3rd Respondent urged for restraint on the part of the Court so as not to usurp the jurisdiction of the 1st and 2nd Respondents and imposing a decision of its own. They pointed that, in any case, the orders sought by the 4th Respondent have been overtaken by events as the 4th Respondent has nominated Ali Menza Mbogo for the position of Governor, Mombasa County. The 1st and 3rd Respondent relied on the case of Wycliffe Khisa Lusaka v Independent Electoral and Boundaries Commission[2017] eKLR wherein the court held that an order of Certiorari would only issue where the court finds that a decision was made without jurisdiction or is palpably erroneous; but the court ought not to impose its views on the tribunal.

58. The 1st and 3rd Respondents therefore urged the Court to dismiss the Petition with costs.

The 2nd Respondent’s submissions 59. On behalf of the 2nd Respondent, written written submissions and a list of authorities dated 6th July, 2022 were filed herein by Mr. Kipkogei. He isolated the following issues for determination: -a.Whether the Petitioner submitted his nomination papers alongside the required supporting documentation out of time.b.Whether the Petitioner is disqualified from vying as a candidate for election to a state office under the provisions of Article 193(2) and (3) of the Constitution.

60. Counsel for the 2nd Respondent submitted that the evidence presented before it by the Petitioner confirmed that he submitted his documents outside the stipulated timelines. He pointed out that, according to Gazette Notice No. 434, the Petitioner was required to present his nomination documents between 2:00 – 4:00 pm but ended up availing some of the requisite documents at 4:42 pm. Counsel made reference to Regulation 2 of the Elections (General) Regulations, 2017 in which “close of nominations” is defined as “four o’clock in the afternoon of the last nomination day for the respective elections”. It was thus the 2nd Respondent’s argument that since the Petitioner presented his papers outside the statutory time, the decision of the 1st Respondent was justified. Counsel relied on Republic v Independent Electoral and Boundaries Commission ex parte James Mwangi Kamau [2017] eKLR and Edward Mukaya Khamala v Independent Electoral and Boundaries Commission[2017] eKLR to support his argument that the time for nomination is limited to the period between 8. 00 am and 4. 00 pm.

61. On whether the Petitioner is disqualified from vying as a candidate for election to a state office under the provisions of Article 193(2) and (3) of the Constitution, counsel for the 2nd Respondent submitted that it is in the public dormain that the Petitioner was impeached by a resolution made on 17th December, 2020 pursuant to Article 181 of the Constitution, Section 33 of the County Governments Act and Senate Standing Orders. He added that the requirements which one must satisfy to vie as a Governor are set out in Article 193 as read with Article 180 (2) of the Constitution. Counsel cited Article 193 (2) of the Constitution for the disqualification criteria and specifically relied on Article 193(2) (g) as the provision applicable to the Petitioner’s situation.

62. Thus, counsel for the 2nd Respondent submitted that Article 193 (2) (g) and (3) as well as Article 75 ought to be interpreted in a purposive manner and not based on a non-contextual reading that once an appeal or review is pending, one is automatically allowed to vie for elections. He added that upon impeachment, the Petitioner approached the High Court whose jurisdiction is sui generis under Articles 22 and 23 of the Constitution, Fair Administrative Action Act and Law Reform Act, which proceedings did not amount to an appeal from the impeachment decision for purposes of Article 193(3) of the Constitution.

63. Thus, the Court was urged to be cautious when determining the Petition herein to avoid a scenario that would render impotent the entire Chapter Six of the Constitution as read with Article 193 (2) of the Constitution. Our attention was also drawn to Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR and the case of Association of Retirement Benefits Schemes v Attorney General & 3 others [2017] eKLR, as to the cannons of constitutional interpretation.

The 4th Respondent’s Submissions 64. The 4th Respondent filed submissions in support of the Petition dated 6th July, 2022 and stated that the action of the 1st, 2nd and 3rd Respondents to disqualify the Petitioner is illegal, unlawful and unreasonable within the Wednesbury’s Principles as espoused by Lord Green M. R in the case of Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 to support the argument that decisions of public bodies would be quashed if the said bodies acted unreasonably.

65. To the 4th Respondent, the decision of the 1st and 2nd Respondents was unreasonable as it was wholly based on the fact that the Petitioner was late in submitting his university degree and a certified copy thereof from the institution. Further, that the 2nd Respondent’s decision was irrational when it purported to extend the time for submission of documents by the 4th Respondent’s candidate with 72 hours and directing that the said documents be of a person other than the Petitioner. This is said to have been calculated to prejudice the rights of the Petitioner herein.

66. Counsel for the 4th Respondent further submitted that the 1st, 2nd and 3rd Respondents deliberately created obstacles and imposed additional requirements not sanctioned by law or the checklist annexed to the 1st and 3rd Respondent’s Further Affidavit sworn on 3rd July, 2022. According to the 4th Respondent, a degree certificate is no longer a requirement as Section 22 of the Elections Act was declared unconstitutional in the case of of County Assembly Forum & 6 others (Supra) for Members of County Assembly.

67. In respect of Regulation 47 of the Elections (General) Regulations counsel argued that it is only applicable to the extent that the Kenya National Examination Council is to authenticate Form Four educational certificates, while the responsibility of the Commission for Higher Education is to authenticate foreign degrees; and therefore the said regulation does not require that copies of university degrees be certified by the issuing institution. The 4th Respondent relied on the case of Council of County Governors v Attorney General & another [2017] eKLR and urged the court to adopt a literal approach in interpreting the above provisions.

68. On the issue of whether the Petitioner’s documents were delivered in time, the 4th Respondent submits that the decision of the 2nd Respondent was unreasonable as it disqualified the Petitioner on ground that he submitted his papers out of time; and yet purported to extend time to the 4th Respondent to nominate a candidate other than the Petitioner within 72 hours. In the 4th Respondent’s view, the said decision lacks logic, is irrational and is null ab initio for being contrary to Section 38G of the Political Parties Act.

69. It is the submission of the 4th Respondent that the failure to clear the Petitioner amounts to an illegal and unjustifiable limitation of the Petitioner’s and 4th Respondent’s fundamental rights and freedoms under Article 27, 38, 47 and 50 of the Constitution. The 4th Respondent relied on the case of Peter Solomon Gichira v Independent Electoral and Boundaries Commission & another [2017] eKLR.

70. Hence, according to the the 4th Respondent, the Petitioner was not accorded the right to a fair administrative action and/or hearing as guaranteed under Article 47 and 50 of the Constitution as the decision to disqualify the Petitioner was accentuated by bias and was pre-determined. The Court was referred to the case of Joyce Chepkoech Too v Egerton University & another[2021] eKLR and was urged to find that, in this instance, Articles 10, 27, 47 and 50 of the Constitution were infringed.

71. On breach of Article 75 of the Constitution, the 4th Respondent submitted that the Petitioner has an existing appeal pending before the Supreme Court; hence, Article 193(2) (g) as read with Article 193(3) of the Constitution apply to him. She argued therefore that the decision to disqualify him for breach of Chapter Six of the Constitution is not only unreasonable but is also discriminatory. The case of Commission On Administrative Justice v John Ndirangu Kariuki & Another [2014] eKLR was cited in support of this proposition.

72. Lastly, the 4th Respondent submitted that it had no candidate other than the Petitioner for the Mombasa gubernatorial seat as the names proposed have since been rejected.

The Interested Party’s submissions 73. The Interested Party filed submissions dated 6th July, 2022, in which it contended that determination of eligibility for election under Article 99(1) (b) and Article 193(1) (b) differs from determination of disqualification under Article 99(2) and 193(2) of the Constitution. According to the Interested Party, for one to operationalize Articles 99(1) (b) and 193(1)(b) of the Constitution, several provisions of Chapter Six as read with Section 13(1) of the Leadership and Integrity Act, must come into play for purposes of determining whether candidates seeking to be elected meet the eligibility threshold.

74. The interested Party urged the Court to find that Article 73(2) provides that state officers be selected on the basis of personal integrity, competence and suitability, while Section 13(1) of the Leadership and Integrity Act requires persons of demonstrable honesty in the conduct of public affairs. It is stated that the threshold for leadership integrity is distinct from criminal culpability in that the standard is much lower and is not based on a standard of proof like in criminal cases; which is beyond reasonable doubt. It is said that the threshold herein is an objective test on whether a candidate has satisfied the educational, moral and ethical requirements to hold a state/public office, whether elective or appointive.

75. The interested party is convinced that this court has the jurisdiction to determine and interpret Article 99(3) and Article 193(3) in reference to the facts relied on during impeachment proceedings with a view of reaching an independent decision as to eligibility.

76. In the submission of counsel for the Interested Party, the reasons for the Petitioner’s impeachment were the same facts that form the basis of his prosecution; and therefore raise the question as to his eligibility to vie for elections. According to him, the argument as to the presumption of innocence does not apply for purposes of Articles 99(3) and Article 193(3) of the Constitution.

77. The Interested Party submits that harmonization as a principle of interpretation shows that the provisions of the Constitution are inter-connected. The argument was made that for this court to promote the spirit, purport and objects of the Bill of Rights as well as the collective right to good governance lies in harmonized interpretation of Articles 10, 38, 73-80, 99 and 193 of the Constitution. Counsel referred the court to the case of Tinyefuza v Attorney General, Constitutional Petition No. 1 of 1996 (1997 UGCC3) where it was observed that “the entire constitution has to be read as an integrated whole and no one particular provision destroying each other but each sustaining the other.” This principle was reiterated by the Supreme Court in The Matter of Kenya National Commission on Human Rights, Supreme Court Advisory OpinionReference No. 1 of [2012] eKLR.

78. The Interested Party also relied on the case of Centre for Rights Education and Awareness and Others v John Harun Mwau and Others Civil Appeal No. 74 and 82 of 2012; [2012] eKLR and urged the court to adopt the harmonization balance to reconcile the constitutional provisions that gives effect to one provision without destroying another provision. The Interested Party stated that there are no idle appendages in the Constitution; and that a correct interpretation breathes life into other constitutional provisions. Therefore, the interpretation of eligibility and disqualification criteria under Articles 99(1), (2) & 193 (1), (2), Article 10 and Chapter Six vis – a- vis Article 99(3) and 193(3) of the Constitution is a solemn one and should be aimed at achieving the intention and aspirations of the people of Kenya in determining the character and qualities of their leaders.

79. Counsel submitted that to allow an unethical, incompetent, unprofessional and unaccountable person to contest an elective position would be counterproductive and would negate the very purpose of the freedom to make political choices. He added that that as a matter of principle, a person seeking elective position who does not meet the integrity threshold should not be registered as a candidate to contest for an elective office. In support of this argument the Interested Party relied on the decision of the Supreme Court of Canada in R v Big M Drug Mart Limited [1985] 1 SCR 295.

80. It was the submission of the Interested Party that the framework for public governance and principles are entrenched under Article 10 (2) of the Constitution and they complement Chapter Six of the Constitution, in particular Article 73(2) to safeguard against bad governance. To buttress this point, the Court was referred to the case of Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR.

81. The Interested Party agreed with the 2nd Respondent that the Articles 10, 99(3) and 193(3) of the Constitution should be interpreted in a manner that avoids absurdity. Hence, they urged this court to give a purposive interpretation that does not allow leaders with pending appeals on integrity issues to be elected to office.

Analysis and Determination 82. From the foregoing summary there is no dispute that the Petitioner was the Governor of Nairobi City County until 17th December 2020 when he was impeached pursuant to Article 121 of the Constitution. Being aggrieved by his impeachment, the Petitioner filed Petition No E425 of 2020: Hon. Mike Sonko Mbuvi Gedion Kioko & Another v the Clerk, Nairobi City County Assembly & 9 Others, in the Constitutional & Human Rights Division of the High Court of Kenya at Nairobi, which was consolidated with Petition No. E014 of 2021. The Petition was heard and dismissed by a 3 judge bench on 24th June 2021. The Petitioner was dissatisfied with the decision of the High Court and consequently filed Civil Appeal No. 425 of 2021: Mike Sonko Mbuvi Gedion Kioko v Clerk Nairobi City County Assembly & 11 Others, before the Court of Appeal against that Judgment and Decree. The Court of Appeal heard the appeal and dismissed it on 4th March 2022.

83. Undeterred, the Petitioner moved to the Supreme Court of Kenya in Appeal No. E008 of 2022: Hon. Mike Mbuvi Sonko v The Clerk County Assembly of Nairobi City & 11 Others. From the pleadings and submissions of the parties, it is apparent that the matter is still pending hearing and determination before the Supreme Court. Mr. Mukele informed us from the bar that the matter had been scheduled for mention before the Deputy Registrar for directions.

84. It was within this backdrop that the Petitioner expressed his interest to vie as a candidate for the position of Governor of the County of Mombasa in the forthcoming General Elections to be held on 9th August 2022. The Petitioner’s interest was given impetus when the 4th Respondent nominated him as its candidate for the gubernatorial seat for Mombasa County in the forthcoming General Elections. The Nomination Certificate was exhibited as Annexure MSK-1 to the Petitioner’s Supporting Affidavit. The nomination of the Petitioner by the 4th Respondent was in response to the Gazette Notice No. 434 dated 20th January 2022. The purpose of the notice was to publish the date of the General Elections to be conducted on 9th August 2022, the timelines for nomination of candidates by political parties and the dates and time for delivery of nomination papers to the 3rd Respondent, among other instructions.

85. Thereafter, the 1st Respondent issued a notice of Pre-Candidates Registration Meeting for Mombasa County to be held on 18th May 2022 at Kenya School of Government. A copy of the notice was exhibited at page 68 of the 1st Respondent’s affidavit along with a List of Attendees. The documents confirm that Wiper Democratic Party was represented by Ali Menza Mbogo and Ochieng Bramwel (see Annexure SIY-8 to the 1st Respondent’s affidavit). There is no dispute that it was at that meeting that the Presentation Schedule specifying the date and time of clearance for each of the candidates was agreed on and issued. A copy of the Schedule is at page 2 of the Supporting Affidavit of the Petitioner, marked Annexure MS-2.

86. According to the Presentation Schedule (Annexure MS-2), the Petitioner was to present his Nomination Papers on Tuesday 7th June 2022 between 2. 00 pm and 4. 00 pm. Prior to that date, the Chairman of the 3rd Respondent, had issued a Press Release to the media on 4th June 2022 on the status of aspirants’ compliance with Chapter 6 of the Constitution. At page 6 of the Press Release, annexed as Annexure SIY-6 to the affidavit of the 1st Respondent, it was indicated that the Petitioner was one of the 3 aspirants who were disqualified from vying as candidates in the forthcoming General Elections on account of impeachment and/or removal from public office for breach of Chapter 6 of the Constitution.

87. The parties are in agreement that the Petitioner appeared before the 1st Respondent at 2. 30 pm on 7th June 2022 for clearance; and that he presented a copy of his degree certificate, as certified by a Commissioner for Oaths, but the 1st Respondent declined to clear or accept the Petitioner’s documents for reasons that:a.He failed to produce his original degree;b.He failed to produce a copy duly certified by the issuing institution; andc.Breach of Article 75 of the Constitution of Kenya.

88. This decision by the 1st Respondent triggered the Petitioner’s complaint before the 3rd Respondent’s Disputes Resolution Committee (DRC, the 2nd Respondent herein) in Complaint No. 127 of 2022: Mike Sonko Mbuvi Gedion Kioko v Returning Officer, Mombasa County. The gist of the Complaint was that the Petitioner’s disqualification under Article 75 of the Constitution was unfair, since he had a pending appeal before the Supreme Court; and therefore that he ought to have been given the benefit of Article 193(3) of the Constitution. His Complaint was heard by the 2nd Respondent and dismissed on 20th June 2022.

89. Upon dismissal of his Complaint, the Petitioner approached this Court, seeking the reliefs set out in paragraph 1 herein above.

90. We have considered all the pleadings and written submissions which were highlighted before us by learned counsel. We have likewise perused and considered the authorities relied upon by the parties. In our view, the following are the issues that present themselves for our determination:a.Whether the Petitioner presented all the documents required by the 3rd Respondent within the stipulated time; and if not, whether time could be extended in the circumstances;b.Whether the Petitioner is entitled to reprieve from disqualification under Article 193(3) of the Constitution.c.Whether costs are payable and by who.

A. On whether the Petitioner presented all the documents required by the 3rd Respondent within the stipulated time; and whether time could be extended in the circumstances: 91. According to the 1st and 3rd Respondents, the nomination requirements for all elective positions were published on the 3rd Respondents’ Candidates Registration Management System (CRMS). An extract thereof is annexed as Annexure SIY-18, at paragraph 6 of the 1st Respondent’s Further Affidavit sworn on 3rd July 2022. Thus, the qualifications for clearance for the elective positions of Governor and Deputy Governor were listed as follows:(a)Must be a Kenyan citizen for at least 10 years before the elections;(b)Must not owe allegiance to a foreign state;)c)Must be eligible for election as a member of the County Assembly;(d)Must be a registered voter;(e)Is a holder of a degree from a university recognized in Kenya;(f)Is nominated by a political party or is an independent candidate;(g)Must meet the statutory, moral and ethical requirements under the Leadership and Integrity Act;(h)Must not hold dual citizenship unless citizenship of the other country has been obtained by operation of law without capacity to opt out;(i)Must not be an undischarged bankrupt;(j)Must not be subject to a sentence of imprisonment for at least 6 months from the date of registration or date of election;(k)Must not have been found to have abused or misused state or public office or contravened Chapter 6 of the Constitution;(l)Must not have been been dismissed or removed from office for contravening the provisions of Article 75, 76, 77, and 78 of the Constitution.

92. Annexure SIY-18 further shows that the candidates were also required to submit the following documents to the Commission for purposes of nomination/clearance:(a)Certified copies of educational qualification certificates including a degree certificate in accordance with Section 22 of the Elections Act, 2011 and Regulation 47 of the Elections (General) Regulations, 2012. Where the body that issued the certificate is not based in Kenya, a certified copy of the certificate which must be authenticated and/or equated by the Kenya National Examinations Council in case of Form 4 certificates or the Commission of Higher Education in case of university degrees;(b)a copy of a national identity card/valid passport (the document used by the candidate to register as a voter);(c)a passport size photograph with white background submitted in hard and soft copy;(d)If a party candidate, a nomination certificate from a fully registered political party nominating the candidate duly signed and authorized official of the party;(e)a duly signed and dated code of conduct (2nd Schedule of the Elections Act, 2011);(f)a duly filled nomination form including an original statutory declaration form for purposes of nomination (Regulation 18(3), Elections (General) Regulations)(g)An original self declation form (Regulation 46 of Elections (General) Regulations)(h)Nomination fees in a bankers cheque payable to IEBC Kshs. 50,000/= for candidates

Kshs. 25,000/= for a candidate who is a youth, a woman or a person with disability

93. The 3rd Respondent also indicated in the CRMS the reasons for invalidation. An extract thereof was annexed to the 1st Respondent’s Further Replying Affidavit as Annexure SIY-19 in accordance with the Constitution, the Elections Act and the Regulations.

94. Article 180 of the Constitution is explicit that:(1)The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.(2)To be eligible for election as county governor, a person must be eligible for election as a member of the county assembly.

95. Article 193(1) on the other hand, provides that:(1)Unless disqualified under clause (2), a person is eligible for election as a member of a county assembly if the person—(a)is registered as a voter;(b)satisfies any educational, moral and ethical requirements prescribed by this Constitution or an Act of Parliament; and(c)is either—(i)nominated by a political party; or(ii)an independent candidate supported by at least five hundred registered voters in the ward concerned.

96. Further to the foregoing, Section 22 of the Elections Act, No. 24 of 2011“A person may be nominated as a candidate for an election under this Act only if that person—a.is qualified to be elected to that office under the Constitution and this Act; andb.holds—i.in the case of a Member of Parliament, a degree from a university recognized in Kenya; orii.in the case of a member of a county assembly, a degree from a university recognized in Kenya.(2)Notwithstanding subsection (1)(b), a person may be nominated as a candidate for election as President, Deputy President, county Governor or deputy county Governor only if the person is a holder of a degree from a university recognized in Kenya.”

97. The same requirements are set out under Section 25 of the Elections Act. Moreover, Regulation 47 of the Elections (General) Regulations, 2012 provides that:(1)For purposes of ascertaining the educational qualification of persons for an elective post, a person seeking nomination shall submit to the Commission certified copies of certificates of the educational qualification.(2)Where the body that issued the certificate is not based in Kenya, a candidate shall be required to seek authentication of that body with the Kenya National Examinations Council, in the case of form four certificates, or the Commission for University Education, in the case of university degrees.

98. The Petitioner provided a list of the documents he presented to the 1st Respondent on 7th June 2022. The list, marked Annexure MS-5 (to the Petitioner’s Affidavit) shows that the Petitioner presented the following documents in time:a.Nomination Paper for Election of County Governor (Form 17)b.Certificate of Nomination by Wiper Democratic Movementc.Petitioner’s Original and Certified Copy of IDd.Certified copy of the Pin certificatee.Copies of IDs of two supportersf.Statutory Declaration for purposes of Nomination for Parliamentary and County Elections (Form 19)g.Self-Declaration Form by EACCh.Certified Copy of the Degree by Commissioner for Oathsi.Certified Copy of the Diploma by certified Commissioner for Oathsj.Certified copy of the KCSE certificate by the Commissioner for Oathsk.Certified copy of the KCPE certificate certified by Commissioner for Oathsl.Tax Compliance Certificatem)Police Clearance Certificaten)HELB clearance certificateo)Deed Poll on change of namesp)The Electoral Code of Conductq)Bankers Cheque of Kshs. 50,000/-r)Draft Campaign Schedule

99. There is no doubt therefore that, the Petitioner complied with the above constitutional, statutory and regulatory requirements as posted in the 3rd Respondents Candidates Registration Management System per Annexures SIY-18 and SIY-19.

100. The Petitioner was however disqualified on the ground, inter alia, that he did not provide an original degree certificate and a copy certified by the issuing body. The evidence presented before us reveals that, at 3. 30 pm on 7th June 2022 the 1st Respondent demanded for the original degree certificate together with a copy certified by the issuing body, which the Petitioner did not have at the time. While at the office of the 1st Respondent, the Petition made efforts to obtain the documents. The documents annexed at pages 46 to 49 of the Petitioner’s Supporting Affidavit leave no doubt that the certified copy of the degree certificate was forwarded by the issuing body, Kenya Methodist University, to the Petitioner and 1st Respondent in soft copy at 16. 03 hours; whereas the original degree certificate was presented, according to the 1st Respondent, at 4. 42 pm on 7th June 2022.

101. Regulation 47(1), which is the Sub-Regulation applicable to the Petitioner, does not specify who is to certify the copy of the degree. We were urged by the 1st and 3rd Respondents to find that it is the issuing body. At paragraph 18 of her affidavit, the 1st Respondent stated, for purposes of this year’s General Elections, aspirants were required to submit a certified copy of the degree certificate together with the original degree certificate. She based this assertion on the Media Release made by the Chairman of the 3rd Respondent (Annexure SIY-6) at paragraph (f) as follows:“The Commission wishes to inform aspirants with degrees from universities within Kenya that aside from the original degree certificate, they must produce a copy of the certificate certified by the issuing university confirming it as a true copy of the original. For degree certificates for universities outside Kenya (foreign degrees), an aspirant is required to obtain a letter of recognition and equation from the Commision for University Education (CUE).

102. It was on this basis that the DRC, at paragraph 47 of its Decision in Complaint No. 127 of 2022, came to the conclusion that:“The certification that is being accepted by the IEBC for the 2022 General Elections is certification by the University issuing the certificate. To the Commission, only the issuing authority can authenticate a document it has issued and thus the reason why certification by an advocate is not allowed in the 2022 General elections. Additionally, it was admitted that the Complainant did not present an original degree certificate. The Committee notes that the requirement for an original degree was applied to all candidates across the board whose part of qualification required a degree qualification. The Respondent was therefore justified to insist that the complainant presents his original degree certificate before he could be cleared...It may be true that in 2017 the Complainant was cleared using copies of his degree certificate certified by his advocate. That does not take away the requirement that for purposes of the 2022 elections, the Commission requires the same to be certified by the issuing institution.”

103. According to the 1st and 3rd Respondents, these additional requirements were published not only in the Media Release of 4th June 2022, but also in the CRMS for compliance by all candidates. This is adverted to at paragraph 17 and 18 of the 1st Respondent’s Supporting Affidadvit. In this regard, Petitioner averred at paragraph 8 of his Supporting Affidavit that these requirements were never brought to his attention until 3. 30 pm by the 1st Respondent.

104. In our view, considering that the Petitioner complied with the constitutional, statutory and regulatory requirements regarding the production of certified copy of degree, it is possible that the Media Release as to the specific requirement to avail original degree and copy duly certified by the issuing institution may have escaped his attention. We say so because they were available and when he learnt about the requirements he made frantic efforts to obtain the original degree and a copy thereof, duly certified by the issuing body, in less than one hour from the deadline.

105. Whereas Section 27 of the Independent Electoral and Boundaries Commission Act gives the 3rd Respondent the power to publish and publicize all important information within its mandate affecting the nation, that provision does not, in our view, authorize the 3rd Respondent demand for additional requirements from those set out in the applicable statute and regulations.

106. Even if, for the sake of argument, the CEO had powers to issue the instructions, we asked ourselves whether it was reasonable for the 1st Respondent to deny the Petitioner the opportunity to present his original decree certificate considering that:a)He was already within the 3rd Respondent’s premises within the prescribed time and had submitted a copy of his degree certificate duly certified by a Commissione of Oaths;c.The degree certificate was issued by a local university and therefore did not require authentication by CUE;d.Considering the frantic efforts made by the Petitioner to nevertheless obtain certification by KeMU and have the same forwarded to the 1st Respondent by 4. 03 pm.e.The original copy of the Certificate was submitted to the 1st Respondent by 4. 42 pm.f.The Petitioner had only one day to make his presentation, grantd that the stay orders against him were not lifted until 6th June 2022; and therefore that he was slotted in as the last candidate.

107. In our view, the 1st Respondent acted unreasonably in this regard. We are fortified in this posturing by the decision of Onguto, J. in Harun Mwadalu Mwaeni v IEBC & Another [2017] eKLR para 41, 43 that:“...The question is thus not whether this court agrees with the decision of the IEBC in refusing to extend time (for the presentment of the Petitioner’s papers) but whether the decision was properly taken in accordance with the regulating law and the tenets of natural justice. To a large extent, that is what Article 47 avails to distressed and dissatisfied parties… 41. The general rule, in my view, ought to be that there should be no condonation where there is noncompliance, for the simple reason that the public would favour an orderly election which may only be achieved if there is adherence to the time-lines. Condonation may however be availed in certain circumstances.

42. Condonation ought to be entertained as constitutional principles and values would dictate as much. Essentially, constitutional values encourage enfranchisement rather than disenfranchisement. Allowing a minimal time difference may only encourage such a value, while an inflexible approach will not. The IEBC as well as the court ought to adopt an approach which favours enfranchisement rather than disenfranchisement. The circumstances where condonation is allowed however ought to be exceptional, otherwise it may end up as a free for all and the result would be a disorganized and shambolic electoral process…

43. Where there are established exceptional circumstances then a tolerant approach is required of both the IEBC and the court…””

108. Thus, the Judge concluded his analysis thus:"In the result, I find fault on the part of the IEBC dispute resolution committee. The committee was clearly unreasonable or irrational in its approach and decision, given the evidence before it. The committee was ready to be flexible but then in a rash manner and without evaluating the evidence before it only ended up being dismissal…I do not also see how the extension of time for a day would have given the Petitioner any unfair advantage or even prejudiced the Respondent’s preparedness. There was need for flexibility and indulgence by IEBC.”

109. We similarly find that it was unreasonable for the 1st, 2nd and 3rd Respondents to decline the Petitioner clearance in the circumstances. We are therefore of the view that by so doing, they infringed the Petitioner’s rights under Article 47 of the Constitution.

B. On Whether the Petitioner is entitled to reprieve from disqualification under Article 193(3) of the Constitution: 110. There is no gainsaying that the Petitioner was impeached on 17th December 2022 and that his Petition to the High Court and appeal to the Court of Appeal were dismissed. We pause here to emphasize the point that, ordinarily, a person who is impeached and removed from state office for gross violation of the Constitution is not eligible to hold any other state office. Indeed, Article 75(3) of the Constitution is explicit that:“A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause 2 is disqualified from holding any other state office.”

111. It is from that standpoint that counsel for the 1st, 2nd and 3rd Respondents took the stance that the Petitioner is not only ineligible but also unsuitable to vie as a candidate for the position of Governor, Mombasa County. The Petitioner however relied on Article 193(3) of the Constition which states:“A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.”

112. The 1st, 2nd and 3rd Respondents took the view that Article 75 is self governing and self-executing. Mr. Mukele for instance argued that the issues of morality and ethics ought to be determined by the 3rd Respondent and not this Court; and that the 3rd Respondent, having found that the Petitioner did not meet the requirements of Chapter 6 and Article 193(2)(g), the Court should restrain itself from usurping the powers constitutionally reposed in the 3rd Respondent.

113. On his part, Mr Kipkogei argued that a person seeking refuge under Article 193(3) should be able to point out the right of appeal or review in legislation; and therefore that the Petitioner should have proved that he had an express right to appeal his impeachment.

114. Mr. Kagucia for the Interested Party drew our attention to the Affidavit of Mr. Owiny sworn 2nd July 2022, and submitted that the Petitioner stands impeached and therefore disqualified to vie by dint of Article 75(3) until and unless that impeachment decision is overturned. He argued that it would absurd to interpret Article 193(3) to mean that a person who has not satisfied educational and moral qualifications can be allowed to vie because of a pending appeal.

115. We have considered these rival arguments and we adopt with the holistic approach to constitutional interpretation as provided for in Article 259(1) of the Constitution, which provides that:1. This Constitution shall be interpreted in a manner that—a.promotes its purposes, values and principles;b.advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;c.permits the development of the law; andd.contributes to good governance.

116. Sub-Article (3) of Article 259 of the Constitution further states that:“Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking...”

117. The interpretation of the Constitution as provided for under Article 259 was considered by the Supreme Court in The Matter of the Kenya National Human Rights Commission, Supreme Court Advisory Opinion Reference No 1 of 2012 [2014] eKLR where it was stated that: -…But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.

118. The same position was taken by the Supreme Court in The Matter of Interim Independent Electoral Commission [2011] eKLR as follows:(86)The rules of constitutional interpretation do not favour formalistic or positivistic approaches (articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human-rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in article 10, in Chapter 6, and in various other provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.(87)In Article 259(1) the Constitution lays down the rule of interpretation as follows:“This Constitution shall be interpreted in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.” Article 20 requires the Courts, in interpreting the Bill of Rights, to promote: (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purport and objects of the Bill of Rights.(88)…… Article 10 states clearly the values and principles of the Constitution, and these include: patriotism, national unity, sharing and devolution of power, the rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability, and sustainable development.(89)It is for these reasons that the Supreme Court, while observing the importance of certainty of the law, has to nurture the development of the law in a manner that eschews formalism, in favour of the purposive approach. Interpreting the Constitution, is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.

119. A holistic approach of interpretation in essence means that the Constituion speaks as one harmonious document; and that it is not self-contradictory. Thus, Article 75, being part of Chapter 6 of the Constitution cannot be read in isolation from Article 193; granted that Article 193(2)(g) does provide for disqualification on the basis of contravention of any of the Chapter 6 provisions. In the premises, we are persuaded that Article 193(3) was deliberately put in place by the framers of the Constitution and by extension, Kenyans, to afford protection to any citizen who has a pending appeal or review during the pendency of such appeal or review.

120. Indeed, in the Media Release issued by the CEO of the 3rd Respondent dated 4th June 2022, he acknowledged, at paragraphs D that:The Commission received a report on one aspirant who had been convicted by the Court and has since appealed the conviction. The commission reckoned that such an aspirant is protected by the provisions of Article 99(3) and Article 193(3) of the Constitution which stipulates that a person is not disqualified unless all possibility of appeal and review of the relevant sentence or decision has been exhausted.”

121. It is, in our considered view, discriminatory that the 3nd Respondent would, in the same breath, at paragraph G of the same Media Release, deny the Petitioner’s candidature in the face of his pending appeal to the Supreme Court. Índeed, at paragraph 37 of the 1st Respondent’s affidavit she stated that the Petitioner failed to present proof of the pending appeal in time; the implication being that had the documents been availed in time, her decision would have been different. Her everments at paragraphs 36, 37, 38, 39, 40, 41 and 42 of the Replying Affidavit sworn on 1st July 2022 are explicit enough on this point. She confirmed that the documents were ultimately supplied on 7th June 2022 at 4. 31 pm by M/s Kirui Kamwibwa & Co. Advocates on behalf of the Petitioner. The letters are marked Annexures SIY-11 and 12(i) and (ii) to that affidavit. We also note that from Annexure SIY-12(ii), the 3rd Respondent is the 8th Respondent in the pending Appeal No. E008 of 2022 before the Supreme Court which was scheduled for mention on 10th June 2022. They cannot therefore feign ignorance of an appeal to which they are parties.

122. While Mr. Kipkogei for the 2nd Respondent urged us to find that the Supreme Court Appeal is a non-starter, he said so knowing fully well that the merit or otherwise of that appeal is a matter falling squarely within the jurisdiction of the Supreme Court; and is therefore beyond the jurisdiction of this Court. That that appeal raised substantive issues before the Court of Appeal is discernible from the orders of the Court of Appeal on costs. Here is what the Court of Appeal had to say in that regard:“In light of the fact that Hon. Sonko’s appeal raises substantive issues of law involving interpretation of the Constitution and statute law relating to impeachment and removal from office of Governor and matters of profound public interest, we order and direct that parties bear their own costs.”

123. It is in the light of the foregoing that we come to the following conclusions and findings:a.That the 1st Respondent acted unreasonably, illogically and unfairly when she rejected a copy of the Petitioner’s degree certificate as certified by an Advocate and thus violated his rights under Article 3, 10, 20, 38 and 47 of the Constitution of Kenya, 2010. b.That the 1st Respondent breached Article 27 of the Constitution and Regulation 47 of the Elections (General) Regulations, 2012, as the requirement that he presents a copy of the degree certified by the issuing body was specific to him; and that in affirming the 1st Respondent’s decision to disqualify him for failure to provide an original degree and a certified copy thereof by institution of issue, the 2nd Respondent was in violation of Article 3, 10, 249(1) and 259(1) of the Constitution.c.That there being an appeal pending before the Supreme Court in connection with his impeachment, the rejection of the Petitioner’s nomination papers under Article 75 of the Constitution was in contravention of Articles 47, 180(2) as read with Article 193(3) of the Constitution of Kenya, 2010.

124. In the result, the Petition is hereby allowed and orders granted as hereunder:

a.A declaration that the 1st, 2nd and 3rd Respondents have violated the rights of the Petitioner under Articles 20, 27, 38(2) and (3), 47(2), as read with Article 193(3) of the Constitution of Kenya.b.A declaration that the 1st 2nd and 3rd Respondents abdicated and violated Articles 3, 10, 47, 249(1) and 259(1) of the Constitution of Kenya.c.A declaration that the Petitioner is eligible under Article 180(2) as read with Article 193(3) of the Constitution to vie as a candidate for the seat of Governor, Mombasa County, in the forthcoming General Elections slated for 9th August, 2022. d.An Order of Certiorari to quash the decision of the 1st and 2nd Respondents disqualifying the Petitioner as a candidate for the position of Governor Mombasa County in Complaint No. 127 of 2022. e.An Order of Mandamus directed at the 1st and 3rd Respondents to accept the nomination papers submitted by the Petitioner herein.f.Each party to bear own costs of Petition.It is so ordered.

SIGNED DATED AND DELIVERED AT MOMBASA IN OPEN COURT THIS 13THDAY OF JULY 2022………………………….OLGA SEWEJUDGE…………………………..STEPHEN GITHINJIJUDGE..............................ANNE ADWERA-ONG’INJOJUDGE