[2022] KEHC 501 (KLR)

Kithinji v Independent Electoral and Boundaries Commission & 3 others; Ethics and Anti-Corruption Comission & another (Interested Party) (Constitutional Petition E05 of 2022) [2022] KEHC 501 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 501 (KLR)

Republic of Kenya

In the High Court at Meru

Constitutional Petition E05 of 2022

EM Muriithi, J

June 3, 2022

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS & FREEDOMS AS ENSHRINED UNDER ARTICLES 10 (1) & (2), 19 (1), 20 (1), 22(1), 23,75, (1), 159, 165, 232 AND 258 OF THE CONSTITUTION OF KENYA 2020 AND IN THE MATTER OF ARTICLES 38, 75, 180 AND 193 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF CHAPTER SIX OF THE CONSTITUTION ON LEADER SHIP AND INTEGRITY AND IN THE MATTER OF RULES 20 AND 21 OF THE CONSTITUTION OF KENYA SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL AND IN THE MATTER OF VIOLATION OF SECTION 22(2) OF THE ELECTIONS ACT, 2011 AND IN THE MATTER OF VIOLATION AND/OR INFRINGMENT OF THE FUNDAMENTAL RIGHTS OF THE PETITIONER AND IN THE MATTER OF THE CONSTITUTION OF KENYA, PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS, PRACTICE AND PROCEDURE RULES

Between

Dickson Mwenda Kithinji

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Returning Officer, Meru County

2nd Respondent

Faith Kawira alias Faith Kawira Mwenda alias Kawira Mwangaza

3rd Respondent

Isaac Mutuma M’ethingia

4th Respondent

and

Ethics and Anti-Corruption Comission

Interested Party

Director of Criminal Investigations

Interested Party

Ruling

1. The Court has considered the Motion dated 31/5/2022 filed by the Petitioner and seeking, principally, an order to restrain the IEBC represented by the 1st and 2nd IEBC Respondents for accepting the nomination of the 3rd and 4th Respondents as candidates for the position of Governor of Meru County in the election of 9/8/2022.

2. The 3rd and 4th Respondents have taken a Preliminary Objection dated 2/6/2022 on the jurisdiction of the court in view of Article 88 (4) (e) of the Constitution and section 74 of the Elections Act.

3. The 1st and 2nd Respondents have filed an application by Notice of Motion dated 3/6/2022 seeking the reference of the matter to the Hon the Chief Justice for purposes of inclusion in the petitions pending hearing before a three Judge bench “which raise similar issues on eligibility of person for election/appointment into public office vide the general election scheduled for 9th August 2022. ” The Court directed that the Preliminary Objection and the application from conservatory orders be heard together just before considering the application for reference of the Petition for reference of the Petition to the Hon. Chief Justice.

4. Hearing was concluded at 2. 15 pm on the 3/6/2022 and ruling set for 4. 00pm, in view of the urgency shown with the nominations set for the Saturday 4/6/2022.

Jurisdiction of IEBC 5. Article 88 (4) (e) of the Constitution grants the IEBC jurisdiction to deal with disputes relating to nominations, the procedure for which is set out in section 74 of the Elections Act.

6. The issue of nomination and clearance of the 3rd and 4th Respondent to vie as candidates for the positions respectively of Governor and Deputy Governor of the Meru County raises a nomination issue within the meaning of the word in the Election Act, Section 2.

7. By its prayers seeking conservancy orders to restrain the 1st and 2nd Respondents “from accepting clearance documents, processing nomination certificates and /or clearing the 3rd and 4th respondents herein to contest for the position of Governor and Deputy of Meru County until the Petition is heard and determined”, the Notice of Motion dated 31/5/2022 clearly seeks to interfere with the mandate of the IEBC from conducting the nominations, at least with respect to the 2nd respondents. It is a matter that the court does not take lightly and will only do so in clear case of breach or threatened breach of the Constitution.

8. Being a nomination dispute to the extent of the question whether the respondents possess valid degree certificates, the court shall defer to the IEBC for that determination and resolution of any disputes that may follow up the determination in with Article 88 (4) (e) of the Constitution and section 74 of the Elections Act. See Godffrey Mwaki Kimathi & 2 others v Jubilee Alliance Party & 3 others[2015] eKLR.

The Application for Conservatory Orders 9. In addition, on the merits of the application, the existence of letters and phone call information, on the one hand, and written confirmations for the Kenya National Qualification Authority and Commission for University Education, on the other hand, giving different positions as to the qualifications of the 3rd Respondent and 4th Respondent does not help the court at this stage of interlocutory conservancy order to make a determination. While the primary burden of proof in the Petition lies with the Petitioner under section 107 and 108 of the Evidence Act, and while the burden of proof as to the possession of the qualifications may shift to the Respondents upon the petitioner producing evidence to a prima facie case, the court does not find that such a prima facie case as would justify shifting of the burden of proof to the Respondents has been demonstrated.

10. The Court has been urged by the Petitioner to rely on his private investigation into the matter of the 3rd and 4th Respondents qualifications and the court does not find such evidence, not coming from the statutory investigative agencies as sufficiently cogent to support a prima case. Evidence of telephone conversations with the various Universities allegedly by the Petitioner even less so. The test for standard of proof in civil cases is described in House of Lords in Re H & R (minors) [1996] AC 563, [1995] UKHL 16, [1996] 2 WLR 8, [1996] 1 All ER 1, where Lord Nicholls of Birkenhead said:“The balance of probability standard means that the court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”The more serious the allegation the more cogent the evidence necessary to persuade the court to find a fact more likely than not and therefore proved on the civil standard of balance of probability.

11. The Court must return a finding that the Petitioner/Applicant has not demonstrated on a balance of probability a prima facie capable of supporting the grant of conservancy orders as prayed in the Notice of Motion.

12. Moreover, it is the court’s view that the Petition is not rendered nugatory by the refusal to grant the conservancy order. The Petitioner may be heard on any dispute by the IEBC, and thereafter by this court, if the 3rd and 4th Respondents are cleared.

13. The Petition when heard by this court, or the 3-Judge bench, if the application by the 1 & 2 respondents for referral of the Petition to Hon. Chief Justice is allowed, may make declarations as appropriate in the matter after hearing the dispute on the merits.

14. Further, the Petitioner pursue an election Petition, should the 3rd and 4th Respondents emerge the winners of the election of Governor at the 9th August, 2022 elections.

15. By its order, this court shall enforce the political rights of the 3rd and 4th Respondents under Article 38 of the Constitution to nomination and election, while at the same time preserving the right of the voter to challenge the nominations, and or election in accordance with the Constitution and the Elections Act.

Orders 16. Accordingly, the court makes an order allowing the Preliminary Objection to the extent that the IEBC shall deal at the first instance with the nomination dispute that may arise following the nomination exercise to be held on the 4/6/2022 with respect to the 3rd and 4th Respondents.

17. For the hearing of the main petition on the challenge of the qualification, the Court shall give directions in the matter on the 9/6/2022.

18. The application for conservatory orders prayed in the Notice of Motion dated 31/5/2022 is, consequently, declined.

19. The costs of the application and the Preliminary Objection shall be costs in the cause to abide the hearing and determination of the Petition.Order accordingly.

DATED AND DELIVERED ON 3RDDAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearancesMr. Maranya with Mr. Mutuma and Mr. Mutegi for the Petitioner.Mr. Mwongela with Ms. Wangui for the 1 & 2 Respondents.Mr. Munene with Mr. Ngentu, Mr. B. Mwirigi, Mr. H. Mutembei and Mr. Sandi for the 3 & 4 Respondents.