[2022] KEHC 9940 (KLR)

Kirungia v Ruto, Deputy Leader of Jubilee Party (Constitutional Petition 11 of 2022) [2022] KEHC 9940 (KLR) (Constitutional and Human Rights) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9940 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 11 of 2022

AC Mrima, J

July 7, 2022

Formerly High Court Misc. Civil No. E121 of 2022

Between

Michael K. Kirungia

Applicant

and

William Ruto, Deputy Leader of Jubilee Party

Respondent

Ruling

Introduction: 1. This matter was originally instituted in the High Court at Nairobi (Milimani) in the Civil Division as Misc. Civil No. E121 of 2022. Upon the request of the Applicant the case was transferred to the Constitutional and Human Rights Division and it was registered as Constitution Petition No. 11 of 2022.

2. The Applicant appeared in person while the Respondent was represented by Messrs. Mutuma Gichuru & Associates Advocates.

3. In the main, the Applicant sought the removal of the Respondent from the Office of the Deputy President of the Republic of Kenya.

4. The application was opposed.

The Application: 5. The application was by way of a Notice of Motion dated 15th March, 2022. It was supported by the Applicant’s Affidavit sworn on even date. The application was brought under Article 22(1) & (2)(c) of the Constitution.

6. The Applicant contended that the Respondent, who is the Deputy Party Leader of Jubilee Party (a duly registered political party) and also the Deputy President of the Republic of Kenya, had violated Articles 147(1) & (2) and 148(5) of the Constitution as well as the provisions of Oaths and Statutory Declaration Act, Cap. 15 Laws of Kenya.

7. In that regard, the Applicant sought the Respondent to be removed as the Deputy President of Kenya pursuant to Article 150(1)(b) of the Constitution.

8. The Applicant asserted that the Respondent had abandoned his duties as the Deputy President and as provided by Article 147(1) & (2) of the Constitution and was now engaged in his own functions under the United Democratic Alliance Party (hereinafter referred to as ‘the UDA’) and campaigns for the 2022 General election.

9. The Applicant further asserted that the Respondent committed a crime under the National Oaths and Affirmations Third Schedule as under Article 148(5) of the Constitution and also under Oaths and Statutory Declarations Act.

10. In particular, the Applicant sought to have the Respondent removed as the Deputy President of Kenya for gross misconduct.

11. Additionally, the Applicant sought that the Respondent be restrained from utilizing the offices of the Deputy President and his official residence home in Karen as meeting venues for the UDA affairs and campaigns.

12. In the main, the Applicant sought for the following orders: -a)That this Application be certified urgent in the first instance and service be dispensed with at first instance.b)That the Respondent be restrained from using the office of the Deputy President and Deputy Presidential Residential home in conducting Meetings of United Democratic Alliance (UDA) until this case is heard and determined.c)That the Respondent be removed from Office of Deputy President because he is not performing the functions conferred by the Constitution and any other functions of the President as the President may assign.d)That the Respondent who is the Deputy President is illegally using Public Funds conducting his own assignment of U.D.A meetings country wide for 2022 Presidential Election Campaign instead of doing the function assigned to him by the President.e)That the Respondent who is the Deputy Leader of Jubilee be declared to have committed a criminal offence under the Oath and Statutory Declarations Act Chapter 15 (II) Laws of Kenya.f)That the cost of this application be provided for.

13. In advancing his case, the Applicant chose to rely fully on his pleadings on record. He opted not to file any submissions.

The Preliminary Objection: 14. In response to the application, the Respondent filed a Preliminary Objection dated 5th May, 2022. The objection was tailored as followed: -a)That this Honourable Court lacks jurisdiction to hear and determine the instant suit as the same seeks orders for removal of the Deputy President from office in a manner that contravenes Articles 150 as read with Articles 144 and 145 of the Constitution of Kenya.b)That the suit herein fails the test of justiciability and ripeness as the Applicant is inviting the Court to embark on an academic exercise which is a waste of precious and scarce judicial time.c)That the suit herein is incompetent and incurably defective both in form and in substance and is therefore untenable.d)That the suit, as filed, does not raise any triable issues for determination.

15. Supporting the objection, the Respondent filed written submissions. He submitted that he has been carrying out his constitutional mandate, been true to his word and has been a law-abiding citizen. He further submitted that he had all along been dedicated and expeditiously carrying out his mandate as stipulated under Article 147 of the Constitution.

16. The Respondent posited that the matter lacks any evidence to support the allegation that the Respondent has acted in contravention of the law.

17. The Respondent presented the following as the issues for determination:i.Whether the Honourable Court is clothed with the requisite jurisdiction to hear and determine the instant suit.ii.Whether the suit satisfies the doctrine of justiciability and doctrine of ripeness.iii.Whether the application and the suit by the applicant raise any triable issues by the court.

18. On the first issue, the Respondent submitted that it is trite law that jurisdiction is everything and that it gives a Court authority, power and legitimacy on any matters before it. Reliance was placed on the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1.

19. The Respondent maintained that his objection challenges the jurisdiction of this Court to hear and determine this matter since the matter was a nullity. Further, that jurisdiction must exist at the time of filing the suit or latest at the commencement of hearing. The cases of Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another (2013) eKLR, John Harun Mwau & 3 Others v Attorney General and 2 Others, Petition No. 65 of 2011[2012] eKLR, were relied on in support.

20. The Respondent posited that the High Court has unlimited jurisdiction to interpret and enforce the Constitution on real disputes and controversies, but not to deal with hypothetical and academic issues. The case ofJesse Kamau and 25 Others v The Attorney General, Nairobi Misc. App. No. 890 of 2004 (Unreported), (the Khadi’s Court case) was cited.

21. The Respondent further asserted that the jurisdiction to remove the President or the Deputy President from office does not lie with this Honourable Court, but with the Parliament, through impeachment; as provided for under Article 150 of the Constitution.

22. Resultantly, it was submitted that the instant suit was bad in law and an abuse of the Court process. The proceedings were faulted as flawed and unsustainable in that they contravene the doctrine of separation of powers. The decision in Trusted Society of Human Rights v. The Attorney General and Others, High Court Petition No. 229 of 2012; [2012] eKLR was relied on in support of the submission.

23. On the aspect of the Respondent being the Deputy Party Leader of Jubilee Party and currently as the Party Leader of the UDA it was submitted that all political parties disputes falls under the jurisdiction of the Political Parties Disputes Tribunal, by dint of Section 40 of The Political Parties Act.

24. The Respondent contended that the Applicant was attempting to bypass the proper forum and that the Courts ought not to allow the Applicant to improperly circumvent the law and procedure as that would go against the doctrine of exhaustion of remedies.

25. The Respondent urged this Court to down its tools since any proceedings would be a nullity on account of it being devoid of jurisdiction.

26. On the second issue, the Respondent submitted that the doctrine of justiciability concerns itself with whether the Court is the most appropriate organ to deal with the dispute and prohibits Court from engaging in mere academic matters. It was argued that a Court should neither entertain abstract arguments nor determine issues when it was too early or simply out of apprehension.

27. It was submitted that the concept or principle of justiciability, which includes the doctrines of ripeness, avoidance and mootness, forms the basis of the powers to determine disputes through non-judicial avenues.

28. It was the Respondents position that the application was purely political and that such suits should never be adjudicated upon by courts. That therefore, this instant matter fails to satisfy the doctrine of justiciability.

29. Further, the Respondent asserted that the instant suit has long been overtaken by events in that the Respondent’s tenure of office is set to expire in about a month’s time. Reliance was placed on John Harun Mwau & 3 Others –v- AG & 2 others HCCP No. 65 of 2011 (unreported); Hon. Martin Nyaga Wambora -v- Speaker of County Assembly of Embu and 5 Others HCCP No. 3 of 2014; Council of Civil Service Unions Vs Minister for the Civil Service [1985] AC 374 at 418; Ndora Stephen -v- Minister for Education & 2 Others, Nairobi High Court Petition No. 464 of 2012.

30. On the doctrine of ripeness, the Respondent submitted that the doctrine prevents a party from approaching a Court prematurely as was held by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR; Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR.

31. To that end, the Respondent maintains that the Applicant has brought forth this suit solely based on mere assertions, allegations, and hypothesis, as the same is unripe.

32. On the third issue, the Respondent contended that the suit was non-substantial and does not raise any triable issues. It was argued that the matter was merely politically-motivated. It was the Respondent’s submission that a triable issue needs not be an issue that would succeed, but one that warrants further interrogation by the Court. Reliance was placed on Jubilee Insurance Company Limited V Grace Anyona Mbinda [2016] eKLR;Saudi Arabian Airlines Corporation V Premium Petroleum Company Ltd [2014] eKLR; Patel V E.A. Cargo Handling Services Ltd. [1974] E.A.

33. The Respondent further asserted that the application was omnibus, the prayers were not specific and fell short of invoking the Court’s jurisdiction as so discussed in Hermanus Phillipus Steyn V. Giovanni Gnecchi Ruscone (2012) eKLR.

34. Additionally, the Respondent raised the doctrine of political question that limits the Court’s power and jurisdiction to deal with issues that are under the mandate of other arms of the government. The Respondent relied on Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya & Another HCCP 628 of 2014 [2015] eKLR; Patrick Ouma Onyango & 12 Others –v- AG & 2 Others (2005) eKLR; Trusted Society of Human Rights Alliance vs Mumo Matemo & 5 Others (2015).

35. In the end, the Respondent urged the Court to dismiss the application as unmerited, bad in law, improper in form, in substance and in law.

36. In a rejoinder, the Applicant elected to only rely on his pleadings on record.

Analysis: 37. From the pleadings, depositions and submissions, this Court will in the first instance deal with the issue on whether the objection is sustained. In the event the objection fails, then the Court will look into whether the application is merited.

38. The celebrated case of Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696, is an anchor on preliminary objections. Building on the said case, the High Court in John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR held that: -The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on a point of law.

39. Notably, Ojwang, J (as he then was) in Oraro -vs- Mbaja (2005) KLR 141 where after quoting the statement of Law, JA. in the Mukisa Biscuits case (supra) went on to state that: -Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence....

40. It is also not lost that a Preliminary Objection must be capable of disposing the entire matter.

41. I have gauged the objection in this matter and the foregoing legal position. I find that the same raises points of law and has the potential of disposing the entire matter if successful.

42. The objection has, therefore, attained the threshold of a pure preliminary point of law.

43. On whether the objection ought to be sustained, suffice to note that since the main issue is on the jurisdiction of this Court, then a brief look at the doctrine of jurisdiction will be in order.

44. The Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.

45. In Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR and Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1, the Court of Appeal stressed that jurisdiction is everything and any Court acting without it engages in a nullity.

46. Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016 [2018] eKLR attested to the position.

47. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

48. And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -(44)…. a party cannot through its pleadings confer jurisdiction to a court when none exists. … Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...

49. From the foregoing, it is sufficiently settled that a Court’s jurisdiction is derived from the Constitution, an Act of Parliament or both.

50. As the jurisdiction of this Court has been impugned on the doctrine of non-justiciability, I will now look at it.

51. In Anthony Miano & others v Attorney General & others [2021] eKLR, the Court observed that: -The concept of non-justiciability of disputes before Courts is a sound one in law. It has its basis in Article 159 of the Constitution which routes for alternative dispute resolution mechanisms. The concept of non-justiciability is comprised of three doctrines: Firstly, the Political Question Doctrine; secondly, the Constitutional-Avoidance Doctrine; and, thirdly, the Ripeness Doctrine. The doctrines are crosscutting and closely intertwined.

52. The three doctrines constituting the concept of non-justiciability were discussed at length in Nairobi Constitutional Petition No. 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020) eKLR. The Court stated as follows: -96. The Black’s Law Dictionary, 9th Edition, Thomson Reuters Publishers at page 943-944 defines justiciability as follows:proper to be examined in courts of justice or a question as may properly come before a tribunal for decision98. We shall commence with the political question doctrine. Black’s Law Dictionary, 10th Edition, Thomson Reuters Publishers, at page 1346 defines it as:The judicial principle that a court should refuse to decide an issue involving the discretionary power by the executive or legislative branch of government. [underlining added]99. The political question doctrine focuses on the limitations upon adjudication by Courts of matters generally within the area of responsibility of other arms of Government. Such matters mostly deal with foreign relations and national security. [See generally Ariel L. Bendor; Are there any limits to justiciability" The jurisprudential and constitutional controversy in light of Israeli and American experience"101. Courts have dealt with application of the doctrine. In William Odhiambo Ramogi & 2 others -v- Attorney General & 6 Others, Mombasa High Court Petition No.159 of 2018 [2018] eKLR, the five-judge bench observed as follows:[79]It was held in Council of Civil Service Unions vs Minister for the Civil Service [1985] AC 374 at 418 that a challenge is referred to as being non-justiciable because its nature and subject matter is such as not to be amenable to the judicial process. The “justiciability” doctrine is rooted in both constitutional and prudential considerations and evince respect for the separation of powers, including a properly limited role of the courts in a democratic society. One justiciability concept is the “political question” doctrine—according to which courts should not adjudicate certain controversies because their resolution is more proper within the political branches.[80]In Baker v Carr 369 U.S. 186 (1962) the United States Supreme Court outlined six matters that could present political questions as follows:[1]a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due to coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.[81]In the Kenyan context, the political question doctrine was discussed by the Court of Appeal in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others (supra) where the Court held as follows:98. In considering the issue, we are alive to the provisions of Article 159 (2) (c) of the Constitution which enjoins courts to promote alternative dispute resolutions mechanism inter alia through reconciliation, mediation or arbitration. We emphasize that these alternative dispute resolution mechanisms must be adopted and effectuated prior to judgment by the trial court. With this in mind, the role of the legislature is to make laws and policy and that of the executive is to implement those laws and policies. The role of the judiciary is to interpret the policies and laws as enacted and approved by the legislature and executive. Generally, courts have no role to play in policy formulation; formulation of government policy is a function best suited for the executive and legislature. In Marbury -vs- Madison– 5 US. 137 it was stated that:The province of the court is solely, to decide on the rights of individuals and not to enquire how the executive or executive officers perform duties in which they have discretion.[82]It is evident from the case law that the two main criteria that will influence the justiciability of an issue or otherwise are firstly, whether there is a clear constitutional commitment and mandate to a particular government organ to make a decision on the issue, and secondly, even where such a constitutional mandate exists, whether the nature of the issue and dispute is such that it is more effectively resolved by conventional political methods of majoritarian decision-making rather than by a deliberative constitutional judgment. This will include situations where a Court lacks the capacity to develop clear and coherent principles to govern litigants’ conduct.102. In the William Odhiambo Ramogi & 2 others v Attorney General & 6 Others case [supra], the learned judges also dealt with the exceptions to the doctrine.103. The above decision went on appeal in Kenya Ports Authority v William Odhiambo Ramogi & 8 Others Mombasa Civil Appeal No. 166 of 2018 [2019] eKLR. Where court of appeal approved the reasoning of the High Court on applicability of non-justiciability concept on intergovernmental disputes.104. In Kenya Association of Stock Brokers and Investment Banks v Attorney General & another High Court, Nairobi, Pet. 22 of 2015 [2015] eKLR [2015] eKLR, Mumbi Ngugi J held:As observed by the Court in the case of Kenya Small Scale Farmers Forum and 6 Others v Republic of Kenya and 2 Others, Petition No 1174 of 2007:The dissenting decision of the Supreme Court in U.S v Butler, 297 U.S. 1 [1936], is apposite in this regard that;“…courts are concerned only with the power to enact statutes, not with their wisdom…. For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.

53. The Court further considered the operation of Constitutional Avoidance doctrine, and in so doing referred to Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 [2014] eKLR and observed thus: -105. We shall now turn to the Constitutional-Avoidance Doctrine. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion106. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held:(256)...…The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.

54. On Ripeness doctrine the Learned Judges in Communications Commission of Kenya case (supra) stated as follows: -107. The doctrine focuses on the time when a dispute is presented for adjudication. The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made108. Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies. The Court of Appeal in National Assembly of Kenya & another v Institute for Social Accountability & 6 others Nairobi Civil Appeal 92 of 2015 [2017] eKLR, In National Assembly of Kenya & Another v The Institute for Social Accountability & 6 others [supra] the Court of Appeal; and, In Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR.

55. Turning back to the instant case, the Applicant is seeking the removal of the Respondent as the Deputy President from office. The law on the removal of Deputy President under the Constitution is provided for under Article 150 which states that: -150. Removal of Deputy President(1)The Deputy President may be removed from office—(a)on the ground of physical or mental incapacity to perform the functions of the office; or(b)on impeachment—(i)on the ground of a gross violation of a provision of this Constitution or any other law;(ii)where there are serious reasons to believe that the Deputy President has committed a crime under national or international law; or(iii)for gross misconduct.(2)The provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President.

56. The Constitution, therefore, has an elaborate procedure on how the Deputy President may be removed from office under Articles 144, 145 and 150.

57. In this matter, the Applicant sought the removal of the Deputy President on the basis of Article 150(1)(b) of the Constitution. The provision is on the removal of the Deputy President by way of impeachment.

58. In Article 145, the Constitution provides for the process of impeachment. The process is squarely within Parliament and it is a self-executing one. As such, the application suffers a false start. Simply put, there are no issues for determination by the Court.

59. In sum, it is the finding of this Court that the application before Court raises matters which are not justiciable. The Court cannot, therefore, assume jurisdiction. It lacks jurisdiction and it has to down its tools.

60. Consequently, the Preliminary Objection dated 5th May, 2022 is merited. The Notice of Motion dated 15th March, 2022 be and is hereby struck out with costs.

61. Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JULY, 2022. A. C. MRIMAJUDGE