[2022] KEHC 9933 (KLR)

Kithinji v Ntuchiu & 5 others; Controller of Budget (Interested Party) (Petition E007 of 2022) [2022] KEHC 9933 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9933 (KLR)

Republic of Kenya

In the High Court at Meru

Petition E007 of 2022

TW Cherere, J

July 7, 2022

IN THE MATTER OF ELECTION OF A DEPUTY COUNTY GOVERNOR UNDER ARTICLE 180 OF THE CONSTITUION OF KENYA. AND IN THE MATTER OF ARTICLE 193 (2)(a) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVETNION OF ARTICLE 193(2)(a) OF THE CONSTITUION OF KENYA AND IN THE MATTER OF VIOLATION OF SECTION 43(5) OF THE ELECTION ACT NO 24 OF 2011 LAWS OF KENYA

Between

Isaiah Kithinji

Petitioner

and

Hon Titus Ntuchiu

1st Respondent

Hon Kiraitu Murungi

2nd Respondent

County Returning Officer Meru County

3rd Respondent

Secretary General Devolution Empowerment Party

4th Respondent

Ethics And Anti-Corrupiton Commission

5th Respondent

Independent Electoral And Boundaries Commission

6th Respondent

and

Controller of Budget

Interested Party

High Court’s jurisdiction in pre-election disputes

The petition revolved around the nomination of 1st respondent, who was the Deputy Governor and the County Executive Committee Member for Finance in Meru County, to contest as Deputy Governor for Meru County in the general elections while still serving as a county executive committee member. The court held among others that its jurisdiction was only triggered once the Independent Electoral and Boundaries Commission made a decision on the issue.

Reported by Kakai Toili

Jurisdiction- jurisdiction of the High Court - jurisdiction over pre-election disputes before the Independent Electoral and Boundaries Commission (IEBC) - whether the High Court had jurisdiction over pre-election disputes before the IEBC had made a decision on the dispute.Constitutional Law- fundamental rights and freedoms - enforcement of fundamental rights and freedoms - right to access information - whether a county governor had the obligation to provide information where the information was sought through a letter addressed to the county secretary - Access to Information Act, 2016, section 7.

Brief facts The petitioner claimed that he got information that the 1st respondent had not resigned as County Executive Committee Member for Finance of the County Government of Meru and that he was seeking re-election as Deputy Governor for Meru County in the general elections of August 9, 2022. The petitioner claimed that his advocate on April 24, 2022 wrote a letter to the 6th respondent, the Independent Electoral and Boundaries Commission (IEBC) seeking information why the 1st respondent was discharging his duties as a county executive committee member but got no response.According to the petitioner, his advocate on June 6, 2022 wrote a letter to the 3rd respondent, the County Returning Officer Meru County, seeking information concerning the self-declaration form tendered by the 1st respondent which formed the basis for his clearance to contest but got no response. The petitioner sought among others; a declaration that the denial by the 2nd and 6th respondents to provide him with the information as sought was a violation of his right to access information; and a declaration that the 1st respondent was not qualified to vie for the seat of Deputy Governor, Meru County in the general elections.The 1st and 2nd respondents opposed the petition and argued that the court had no jurisdiction to determine pre-election disputes and complaints and to do so would amount to usurping the alternative dispute jurisdiction of IEBC.

Issues

Whether the High Court had jurisdiction over pre-election disputes before the Independent Electoral and Boundaries Commission had made a decision on the dispute.

Whether a county Governor had the obligation to provide information where the information was sought through a letter addressed to the county secretary.

Relevant provisions of the Law Access to Information Act, 2016Section 7 - Designation of information access officer(1) A chief executive officer of a public entity shall be an information access officer for purposes of this Act.(2) A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

Held

The jurisdiction of the High Court under article 165(3) of the Constitution to adjudicate on matters of and concerning the Constitution was wide. The High Court had the exclusive mandate to determine issues relating to the Elections Act. When interpreting provisions of the statutes, the court should endeavour to give a purposive approach to legislative interpretation. The court had jurisdiction to determine questions regarding interpretation of the Constitution.

Pre-election disputes were a reserve of the IEBC or the court acting in judicial review or exercising its supervisory jurisdiction. Pre-election disputes such as the instant one that related to suitability and eligibility for nomination of candidates, had to be resolved by the IEBC in the first instance. The High Court’s jurisdiction was only triggered once the IEBC made a decision on the issue.

No complaint concerning the 1st respondent’s suitability for nomination as deputy governor had been filed with IEBC. The issue concerning the suitability of nomination of the 1st respondent and whether the 1st respondent was required to resign by February 9, 2022 was brought to the court prematurely.

Section 7 of the Access to Information Act, 2016 provided for the designation of information officers. The letter annexed by the petitioner dated April 12, 2022 seeking information concerning the 1st respondent’s resignation was addressed to the County Secretary Meru County. There was no evidence that the letter was served on the County Secretary. On its face, the letter revealed that it was served on a lady described as secretary to the Governor. Even assuming that the letter was indeed delivered to the 2nd respondent, which was denied, the 2nd respondent had no obligation to provide the information sought for the reason that no request was made to him.

The petitioner’s advocate’s letter dated June 6, 2022 revealed on its face, that it was addressed to the 3rd respondent but was served on the firm of Kennedy Nyagaka Nyamokeri Advocates. There was no evidence that the letter was served on the 6th respondent’s chief executive officer and even if for arguments sake the letter was brought to the attention of the 3rd and 6th respondents, the letter did not warrant any response for the reason that it violated section 7 of the Access to Information Act, 2016.

Petition dismissed and preliminary objection upheld.

Orders Costs to be borne by the petitioner.

Citations Cases Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (Petition 2 of 2014; [2014] eKLR) — Mentioned

Geoffrey Muthinja & Robert Banda Ngombe v Samuel Muguna Henry, John Jembe Mumba, John Maroo, John Columbus Gikunda M’mwanjah, Bernard Njiru Arozon, Samuel Chivatsi Munga, James Marangu M’muketha & 1750 others (Civil Appeal 10 of 2015; [2015] KECA 304 (KLR)) — Explained

Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others Ahmed Ali Mukhtar (Interested Party) (Petition 7 of 2018; [2019] eKLR) — Explained

Mpuru Aburi v Meru County Public Service Board, Meru County Sectretary, Chief Officer Finance-Meru County, Chief Officer, Water & Irrigation-Meru County & Chief Officer Finance-Meru County (Miscellaneous Civil Application E016 of 2020; [2021] KEHC 9259 (KLR)) — Explained

Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Party) (Pet. No. E090 of 2022, Nrb Pet. No. E168 of 2022, Nrb Pet. No. E221 of 2022, Nrb Pet. E230, Nrb Pet. E234 of 2022, Nrb Pet. E249 of 2022 and Msa Pet. No. E017 of 2022 and Msa Pet. No. E019 of 2022 and Eld Pet. No. E010 of 2022 (Consolidated)) — Mentioned

Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011; [2012] KESC 2 (KLR)) — Explained

Speaker of Senate v Attorney General and 4 Others (Advisory Opinion Reference 2 of 2013 ; [2013] eKLR) — Explained

Statutes Access to Information Act, 2016 (Act No 31 of 2016) — Section 7 — Interpreted

Constitution of Kenya, 2010 — Article 10, 35,(1)(b); 81; 84 (4); 86; 88 (1), (4)(e); 105; 159 (3)(b)(d); 165(3)(6); 179, (2) (a) (b)(1); 180 (2)(6); 193; 259(1); Section 2(1) — Interpreted

Elections Act, 2011 (Act No 24 of 2011) — Section 22 (2); 43 (5); 43(6) (f); 74, (1); 75 (1) — Interpreted

Fair Administrative Actions Act, 2015 (Act No 4 of 2015) — Section 9(2)(3) — Interpreted

Independent Electoral and Boundaries Commission Act, 2011 (Act No 9 of 2011) — Section 4(e) — Interpreted

Leadership and Integrity Act, 2012 (Act No 19 of 2012) — Section 13 — Interpreted

AdvocatesMr. Kiogora for Kiogora Mugambi & Co. Advocates for the PetitionerMr. Mbaabu for Mbaabu M’Inoti Advocates for the 1st & 2nd RespondentsMr. Ochieng, & Ms. Olive for C.B. Mwongela for the 3rd and 6th RespondentsMr. Munene for the 5th Respondent

Judgment

The Petition. 1. This petition revolves around the nomination of Hon Titus Ntuchiu(1st respondent), by the Hon Kiraitu Murungi (2nd respondent) to contest as Deputy Governor for Meru County in the General Elections slated for August 9, 2022 (“the General Elections”).

2. According to the Isaiah Kithinji (petitioner), he got information on April 12, 2022 that the 1st respondent had not resigned as County Executive Committee Member for Finance of the County Government of Meru and that he was seeking re-election as Deputy Governor for Meru County in the General Elections slated for the General Elections.

3. According to the Petitioner, his advocate on April 24, 2022 wrote a letter to the Independent Electoral And Boundaries Commission (IEBC) (6th respondent) seeking information why the 1st respondent was still discharging his duties as County Executive Committee Member for Finance but got no response.

4. According to the petitioner, he later came across an integrity report by the Ethics And Anti-corrupiton Commission(5th respondent) to the County Returning Officer Meru County (3rd respondent) in which it was indicated that the 5th respondent was investigating whether the 1st respondent had resigned as an employee of Meru County Government as at February 9, 2022 in line with section 43(5) of the Elections Act, 2011.

5. According to the petitioner, his advocate on June 6, 2022 wrote a letter to the 3rd respondent seeking information under article 35 of the Constitution concerning the Self Declaration Form tendered by the 1st respondent which formed the basis for which he was cleared to contest while still discharging his duties as County Executive Committee Member for Finance but got no response.

6. Petitioner submitted that section 2(1) of the Constitution that establishes the principle of constitutional supremacy and articles 81 and 86 binds the 6th respondent in the manner it conducts elections.

7. The petitioner therefore by amended petition dated and filed on June 8, 2022 seeks the following reliefs: -a.A declaration that the denial by the 2nd respondent to provide the petitioner with the information as sought in the letter dated April 12, 2022 is a violation of the petitioner’s right as guaranteed under article 35(1)(b) of the Constitution.b.A declaration that the denial by the 6th respondent to provide the petitioner with the information as sought in the letter dated April 24, 2022 is a violation of the petitioner’s right as guaranteed under article 35(1)(b) of the constitution.c.A declaration that the 2nd respondent abdicated, neglected and or failed to uphold his duties as envisaged under the Constitution of Kenya, 2010 by nominating the 1st respondent as a running mate despite the 1st respondent being a non-qualified person for any elective position in the upcoming elections of August 9, 2022. d.A declaration that the 4th respondent abdicated, neglected and or failed to uphold its duties as envisaged under the constitution of Kenya, 2010 by accepting nomination of the 1st respondent by the 2nd respondent as his running mate despite the 1st respondent being a non-qualified person for any elective position in the upcoming elections of August 9, 2022. e.A declaration that the 3rd respondent cannot accept the 1st respondent for nomination as a Deputy Gubernatorial candidate for the Meru Gubernatorial election schedule for the August 9, 2022 the 1st respondent having failed to satisfy the qualifications as required by section 43(5) of the Elections Act.f.A declaration that the 1st respondent is not qualified to vie for the seat of Deputy Governor, Meru county in the elections scheduled for August 9, 2022, on account of having failed to satisfy the qualifications as required by section 43(5) of the Elections Act.g.That an order certioraribe issued to remove to this Honourable court and quash the decision made by the 3rd respondent on the June 5, 2022 to nominate the 1st respondent as a running mate for the 2nd respondent to vie for the Meru Gubernatorial seat in the General Elections slated for August 9, 2022. h.That an order of certioraribe issued to remove to this honourable court and quash the nomination certificate issued by the 3rd respondent on the June 5, 2022 to the 2nd respondent to vie for the Meru Gubernatorial seat in the General slated for August 9, 2022. i.That an order of certioraribe issued to remove to this honourable court and quash any publication in the Kenya gazette notifying the 1st respondent as Deputy Governor candidate for the Meru Gubernatorial elections in the general elections slated for August 9, 2022. j.That an order of certioraribe issued to remove to this honourable court and quash any publication in the Kenya Gazette notifying then2nd respondent as a governor candidate for the Meru Gubernatorial elections in the General elections slated for August 9, 2022.

The 1st and 2nd Respondents’ Response 8. The 1st and 2nd respondents opposed the petition by way of grounds of opposition filed on June 6, 2022 and answer to amended petition filed on June 16, 2022. According to them, this honourable court has no jurisdiction to determine pre-election disputes and complaints and to do so would amount to usurping the alternative dispute jurisdiction of IEBC conferred by section 4(e) of the Independent Electoral and Boundaries Commission Act, 2011.

9. According to them, the petition is premature and unripe and offends the doctrine of exhaustion for failure to exhaust all available dispute resolution mechanisms set under rules 8. 9, 11 and 13 of the rules of Procedure on Settlement of Disputes. It is their case that the Petition also offends the provisions of section 9(2) and (3) of the Fair Administrative Actions Act which ousts the court’s jurisdiction to hear and determine matters arising from an act or decision in which internal mechanism for review or appeal have not been exhausted.

10. 1st and 2nd respondents contend that article 179(2)(a)(b) of the Constitution establishes an organ called County Executive Committee (CEC) in which the County Governor and the Deputy County Governor are automatic members by virtue of their election and that section 32(2) and (3) of the County Government Act, 2012 provides that the Deputy Governor shall deputize the Governor in the execution of the Governor’s functions and that the Governor may assign the Deputy Governor any other responsibility or portfolio as a member of the County Executive Committee.

11. They additionally contend that the 1st respondent has held the position of CEC member pursuant to article 179 of the Constitution of Kenya through his election as Deputy County Governor and not as a result of an appointment by the 2nd respondent and was therefore exempted from resigning by February 9, 2022.

12. 1st and 2nd respondents urge court to find that the 1st respondent’s position is protected by section 43(6)(f) of the Elections Act Kenya and he is therefore not required to resign from his position before vying for an elective post.

The 3rd and 6th Respondents’ Response 13. The 3rd and 6th respondents opposed the petition by way of a replying affidavit sworn on June 23, 2022 by Chrispine O Owiye, the 6th respondent’s Director Legal and Public Affairs.

14. According to them, IEBC is an independent body established under article 88(1) of the Constitution mandated by article 84(4) to conduct or supervise referenda and elections to any elective body or office established by the Constitution and any other elections prescribed by an Act of Parliament. They contend that section 74 of the Elections Act, 2011 reserves jurisdiction over nomination disputes to the commission and exercise of that jurisdiction is regulated by the rules of Procedure on Settlement of Disputes.

15. According to them, 1st and 2nd respondent presented their nomination papers on June 5, 2022 and having been found complainant, the 3rd respondent issued the 2nd respondent a nomination certificate. that in clearing the 1st and 2nd respondent, 3rd respondent was alive to, and applied constitutional dictates in article 10, chapter six, article 180 (2) and 193 of the Constitution as well as section 22(2) of the Elections Act and section 13 of the Leadership and Integrity Act.

16. According to them, the report from the Ethics and Anti-Corruption Commission (EACC) the 5th respondent in which the 1st respondent was enlisted as an individual with whom it was investigating as to whether he had resigned from office on or before February 9, 2022 was inconclusive. That having not received any material that would lead to the conclusion that the 1st respondent is disqualified to run for position of Deputy Governor of Meru County, the 3rd respondent had no option but to issue the 2nd Respondent with a nomination certificate.

17. The 3rd and 6th respondents reiterate the 1st and 2nd respondents’ proposition that even if the 1st respondent had not resigned as provided for under section 43(5) of the Elections Act, 2011, he is exempted from resignation under section 43(6) of the Elections Act, 2011. They also restate that 1st and 2nd respondent are jointly elected under article 180(6) of the Constitution and are members of the county executive committee under article 179(2)(1) of the Constitution and having been assigned additional duties under section 33 of the County Government Act, 2012, 1st respondent was not enjoined to resign.

18. The 3rd and 6th respondents contend that no letter requesting for information under article 35 of the Constitution was ever served on the 3rd respondent and that a letter dated June 7, 2022 addressed to the 3rd respondent and authored by Kiogora Mugambi & Co Advocates was not served on them and that response to the letter was unwarranted as it was contrary to Access to Information Act, 2016 section 7 which requires that the request be made to the Chief Executive Officer of a public body.

The 5th Respondents’ Response 19. The 5th respondent opposed the petition by way of grounds of opposition filed on June 27, 2022. It contends that under the Constitution, Ethics and Anti-Corruption Act and Leadership and Integrity Act, it is mandated to investigate allegations in respect of corruption, economic crimes, chapter six of the Constitution matters and to make recommendations to the Director of Public Prosecution.

20. It is the 5th respondent’s case that it is conducting independent investigations on integrity issues touching on the 1st respondent and upon conclusion will make the necessary recommendations to the Director of Public Prosecution. It denied that petitioner made any request for information in relation to the ongoing investigations concerning the 1st respondent.

Submissions 21. Mr Kiogora learned counsel for the petitioner reiterated the grounds on the amended petition and urged court to find that it has jurisdiction to determine this matter under article 159(3)(b) and (d) of the Constitution. It was submitted for the petitioner that 1st respondent has conceded that he did not resign by February 9, 2022 and that his clearance by the 3rd and 6th respondents therefore contravenes section 43(5) of the Elections Act. Concerning request for information, petitioner submitted that the 2nd and 3rd respondents violated petitioner’s right to access to information under article 35 for failing to provide information requested concerning the 1st respondent.

22. Mr Kurauka and Mr Mutuma learned counsel for the 1st and 2nd respondents submitted that a Deputy Governor who is an automatic member of the County Executive Member and having been assigned special duties is exempted from resigning by section 43(6) of the Elections Act.

23. Mr Munene learned counsel for the 5th respondent submitted that the investigations concerning the 1st respondent are ongoing and that no request for information concerning 1st respondent was made to 5th respondent.

24. Mr Ochieng learned counsel for the 6th respondent submitted that the 1st respondent was duly cleared to contest since no information was received that he is unqualified and that no request for information concerning 1st respondent was made to it CEO.

Determination 25. I have considered the petition, the affidavit in support, the response, the grounds of opposition, the submissions and authorities referred to in support of the parties’ respective positions.

26. I have deduced the following issues for determination:1. Whether this court has jurisdiction to entertain pre-election disputes2. Whether the petitioner’s right to Access to Information has been violated3. What orders ought the court to grant.

1. Jurisdiction 27. In answering the questions in this petition, the court is called upon to interpret the provisions of the Constitution and the law. Article 259(1) provides that the Constitution shall be interpreted in a manner that promotes its purpose, values and principles, advances the rule of law and the human rights and fundamental freedoms in the Bill of Rights and permits development of the law and contributes to good governance. Article 259(1) commands the court to take a purposive approach in interpreting the Constitution which is a transformative charter, intended to break from the past and look to the future. In this regard, the Supreme Court in Speaker of Senate v Attorney General & 4 others SCK Advisory Opinion No 2 of 2013 [2013] eKLR stated:“Kenya’s Constitution of 2010 is a transformative charter. Unlike the conventional “liberal” Constitutions of the earlier decades which essentially sought the control and legitimisation of public power, the avowed goal of today’s Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy. This is clear right from the preambular clause which premises the new Constitution on – “Recognisingthe aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.”

28. The jurisdiction of the High Court under article 165(3) to adjudicate on matters of and concerning the Constitution is wide. The High Court has the exclusive mandate to determine issues relating to the Elections Act. I have considered the foregoing provisions and the Supreme Court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others[2014] eKLRwhere it was held that when interpreting provisions of the statutes, the court should endeavour to give a purposive approach to legislative interpretation and I agree with the petitioner’s position that this court has jurisdiction to determine questions regarding interpretation of the Constitution.

29. The petition discloses that what is being challenged in this petition is an action emanating from the nomination process. It is contended by petitioner that the 1st respondent ought to have resigned from his position as County Member for Finance by February 9, 2022. In challenging this court’s jurisdiction, the respondents rely on section 74(1) of the Elections Act which provides that:-Settlement of certain disputes(1)Pursuant to article 88(4)(e) of the Constitution, the commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2)An electoral dispute under sub section (1) shall be determined within ten days of the lodging of the dispute with the commission.(3)Notwithstanding sub section (2), where a dispute under sub section (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.”

30. The jurisdiction of this court to hear pre-election disputes was settled by the Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others Ahmed Ali Mukhtar (Interested Party) (2019) eKLR where the court held that pre-election disputes are a reserve of the IEBC or this court acting in judicial review or exercising its supervisory jurisdiction. In that case, the supreme expressed itself as hereunder:(68)So as to ensure that article 88(4)(e) of the Constitution is not rendered inoperable, while at the same time preserving the efficacy and functionality of an election Court under article 105 of the Constitution, the court developed the following principles:(i)all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBCor PPDT, as the case may be, in the first instance;(ii)where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution, such dispute shall not be a ground in a petition to the election Court;(iii)where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution; the High Court shall hear and determine the dispute before the elections, and in accordance with the constitutional timelines;(iv)where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election court;(v)the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution, even after the determination of an election petition; Page 33 of 34(vi)in determining the validity of an election under article 105 of the Constitution, or section 75(1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.(69)We believe that the foregoing principles may pave the way in streamlining the electoral dispute-resolution processes, both at the pre-election and post-election stages.(80)On the basis of the foregoing reasoning, we find and hold that both the Election court and the Court of Appeal wrongly assumed jurisdiction, in determining what was clearly a pre-election dispute, regarding the academic qualifications of the petitioner. However, as our principle number (v) (above) stipulates, a petitioner’s inaction does not prevent him from presenting the dispute for resolution before the High Court, sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165(3) and (6) of the Constitution.(81)This Principle as read with Principle (vi) means that at any time, the judicial process is never closed. It also preserves the authority of the Constitution, in the event of the occurrence of certain “tragedies”, to which our attention was drawn. For example, what would happen if a person who is not a citizen of Kenya were to slip through the IEBC vetting process and become elected MP, Governor, or even President" Or what happens if a person who is not qualified as provided for by the Constitution, slips through the IEBC vetting process and gets elected" The answer lies in the two principles. In the one instance, where the tragedy was not known, the election court assumes jurisdiction. In the other instance, where the tragedy was known, the High Court takes over under article 165 to preserve the Constitution. This interpretative framework is not only holistic and purposive; it is also forward looking. After all, whatever can slip through the IEBC vetting process, can also slip through the election court petition processes! At the end of the day, the constitutional pre-election dispute resolution mandate of the IEBC is respected, the efficacy of the election court is preserved, and above all, the authority of the Constitution is intact!”

31. From the foregoing, there is no doubt that pre-election disputes such as this one that relates to suitability and eligibility for nomination of candidates, must be resolved by the IEBC in the first instance. The High Court’s jurisdiction is only triggered once the IEBC makes a decision on the issue. (See Pet NoE090 of 2022,Nrb Pet NoE168 of 2022,Nrb Pet NoE221 of 2022,Nrb PetE230,Nrb PetE234 of 2022,Nrb PetE249 of 2022 andMsaPet NoE017 of 2022 andMsa Pet NoE019 of 2022 andEld Pet NoE010 of 2022 (Consolidated)).

32. In this case, no complaint concerning the 1st respondent’s suitability for nomination as Deputy Governor has been filed with IEBC. The exhaustion doctrine was discussed by the Court of Appeal in Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the court stated that:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.………….”

33. In Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, Application No 2 of 2011 [2012] eKLR, the Supreme Court pronounced itself on jurisdiction thus [paragraph 68]:“(68)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. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings…….”

34. From the foregoing analysis, I find and hold that the issue concerning the suitability of nomination of the 1st respondent and whether the 1st respondent was required to resign by February 9, 2022 was brought to this court prematurely and decline the invitation to usurp the IEBC’s jurisdiction to determine the issue at the first instance.

2. Whether the Petitioner’s Right of Access to Information has been Violated 35. Article 35 of the Constitution provides that:1)“Every citizen has the right of access to—a)information held by the State; andb)information held by another person and required for the exercise or protection of any right or fundamental freedom.2)Every person has the right to the correction or deletion of untrue or misleading information that affects the person.3)The State shall publish and publicize any important information affecting the nation.

36. In the case of Mpuru Aburi v Meru County Public Service Board & 4 others[2021] eKLR, the court held that“The Constitution undoubtedly provides that information held by the state is accessible by citizens and that that information is available on request. What this means is that once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information.

37. For purposes of actualizing article 35, Parliament enacted Access to Information Act 2016 (the Act). Section 7 of that Act provides as follows concerning designation of information officers:(1)A chief executive officer of a public entity shall be an information access officer for purposes of this Act.(2)A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

38. The letter annexed to petitioner’s dated April 12, 2022 marked IKM-1 seeking information concerning the 1st respondent’s resignation is addressed to the County Secretary Meru County. There is no evidence that the letter was served on the County Secretary. On its face, the letter reveals that it was served on a lady described as secretary to the Governor. Even assuming that the letter was indeed delivered to the 2nd respondent which is denied, the 2nd respondent had no obligation to provide the information sought for the reason that no request was made to him.

39. Secondly, the petitioner’s advocate’s letter dated June 6, 2022 marked IKM-3 reveals on its face, that it was addressed to the 3rd respondent but was served on the firm of Kennedy Nyagaka Nyamokeri Advocates. There is no evidence that the letter was served on the 6th respondent’s CEO. And even if for arguments sake the letter was brought to the attention of the 3rd and 6th respondents, I agree with their proposition that the letter did not warrant any response for the reason that it violated section 7 of the Access to Information Act, 2016.

(3) Orders 40. From the totality of the foregoing analysis, the orders which commend to me and which I hereby issue are as follows;1. Preliminary objection dated June 3, 2022 and filed on June 6, 2022 is upheld2. The amended petition dated and filed on June 8, 2022 has no merit and it is dismissed3. Costs shall be borne by the petitioner.

DATED AT MERU THIS 07THDAY OF JULY2022WAMAE. T. W. CHEREREJUDGEAppearanceCourt Assistant - Morris KinotiMr. Kiogora for Kiogora Mugambi & Co. Advocates for PetitionerMr. Mbaabu for Mbaabu M’Inoti Advocates LLP for 1st & 2nd RespondentsMr. Ochieng, & Ms. Olive for C.B. Mwongela for 3rd and 6th RespondentsMr. Munene for the 5th RespondentN/A for 4th RespondentN/A for the Interested Party