[2023] KEHC 26157 (KLR)

Kuto v Kenya Magistrates and Judges Association; Independent Electoral and Boundaries Commission & another (Interested Parties) (Petition E422 of 2023) [2023] KEHC 26157 (KLR) (Constitutional and Human Rights) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26157 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E422 of 2023

EC Mwita, J

December 1, 2023

Between

Hon.Derrick Khaemba Kuto

Petitioner

and

Kenya Magistrates and Judges Association

Respondent

and

Independent Electoral and Boundaries Commission

Interested Party

Hon. Justice Radido Stephen Okiyo

Interested Party

Judgment

Introduction 1. This litigation revolves around election for the position of president of the respondent, an association of magistrates and judges. The litigation pits the petitioner, a member and current president of the respondent on the one hand and the respondent and the 2nd interested party also a member of the respondent, on the other hand.

Background 2. The petitioner was first elected president of the respondent on 11th December 2021 for a term of two years renewable once. The 2nd interested party is desirous of contesting the position of president and has offered himself for election in the elections due this year.

3. On 28th August 2023, the respondent sent out nomination forms calling on interested members to submit their nomination for the various elective positions within 21 days. The nomination period was to close on 19th September 2023. The nomination forms were sent through members’ email addresses as required by rule 6. 1 of the respondent’s election rules, (the rules).

4. At the close of the nomination period, only the petitioner had submitted his nomination for the position of president. On 23rd September 2023, the respondent’s executive director sent to members a list of the duly nominated candidates for the various positions.

5. On 26th September 2023, the 2nd interested party lodged a complaint with the respondent on grounds that the email sent to him on 28th August 2023 did not contain the nomination form as well as declarations of vacancies as required by the rules.

6. The respondent’s executive council considered the complaint but because a dispute resolution committee had not been constituted, escalated the issue to the national council to consider constituting the committee. On 29th September the national council resolved that the issue raised by the 2nd interested party was not a dispute but an error which could be dealt with administratively.

7. The national council therefore resolved that the nominations be recalled and the process reopened to allow all eligible members to participate in the nomination process and subsequent elections. Elections were also pushed from 25th November 2023 to 16th of December 2023.

The Petitioner’s Case 8. Aggrieved with the decision to reopen the nominations, the petitioner has filed this petition arguing that the decision to reopen the nomination process and change the election date violated his constitutional rights. The petitioner, in particular, argues that he was not accorded a fair administrative action in violation of article 47 of the constitution and that the decision violated his legitimate expectation.

9. The petitioner takes the view, that the 2nd interested party was guilty of laches given that nomination forms were sent to members on 28th August 2023, inviting them to declare interest as candidates for the various elective positions by 19th September 2023 in compliance with rule 6. 2 of the rules. However, at the close of the nomination period, the 2nd interested party had not submitted his nomination or complaint.

10. The petitioner asserts that pursuant to rule 6. 3, of the rules, members were informed that 9 candidates had declared interest in 6 elective positions, while he (petitioner) was the only candidate validly nominated for the position of president. For that reason, the petitioner argues, he was re -elected unopposed for a further 2 years in accordance with rule 6. 7 of rules.

11. According to the petitioner, the executive council’s meeting of 27th September 2023 resolved to forward the complaint to the national council for the purpose only of recommending members to the dispute resolution committee to resolve the issue.

12. The petitioner states that on 29th September 2023, the national council erroneously formed the view, that there was no dispute to be resolved and instead concluded that the 2nd interested party’s complaint revealed an administrative error. The nomination period was thus, reopened and a new election date set. On 16th October 2023, an updated list of nominated candidates, including the 2nd interested party who had been nominated for president’s election was sent to members.

13. It is the petitioner’s Case that the impugned decision was unlawful, first; because the national council’s decision was made through raising of hands instead of casting of votes by secret ballot as required by article 14 of the respondent’s Constitution.

14. Second, the petitioner argues that the national council made the decision without jurisdiction because there is no express provision in the respondent’s constitution and rules authorizing the national council to re-open the nomination process. The national council’s jurisdiction was appellate in nature flowing from the complaint lodged before the dispute resolution committee which is yet to be established. The petitioner asserts, therefore, that he had not also been granted an opportunity to be head before the decision was made.

15. The petitioner contends that the decision violated rules 6. 2, 6. 3 and 6. 7 which had been complied with, but the respondent unlawfully and unconstitutionally invalidated his re-election.

16. The petitioner takes the view, that the interested party failed to register his complaint during the nomination period or submit his candidature for him to be deemed an unsuccessful candidate under rule 6. 4 of the rules. Despite appealing against the impugned decision, he (petitioner), argues that the national council by majority dismissed the appeal and declined to review the decision.

17. The petitioner relies on the Supreme Court decision in NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) (Constitutional and Human Rights) (24 February 2023) (Judgment), that enjoyment of the freedom of association is intertwined with the enjoyment of other rights particularly the right to freedom of expression.

18. In this regard the petitioner argues that the respondent’s decision was not founded on any law thereby violating his right to freedom of association and speech guaranteed under articles 33 and 36 of the constitution.

19. The petitioner further argues that the decision is unlawful, unreasonable and unfair and was made in violation of his right to fair administrative action guaranteed under article 47 of the constitution.

20. The petitioner again relies on the decision in Judicial Service Commission v Mbalu Mutava & another[2015] eKLR for the position that:Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights.

21. Further reliance is placed on Rose Wangui Mambo & 2 others v Limuru Country Club & 17 others [2014] eKLR for the same position.

22. The petitioner further states that the impugned decision is a violation of his right to dignity guaranteed under article 28 of the constitution. The petitioner cites the decision in Ahmed Issack Hassan v Auditor General [2015] eKLR that the right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights.

23. The petitioner again relies onEva Nyawira Waheire v Peter Muriuki & 4 others [2022] eKLR on the same point.

24. On the basis of these arguments, the petitioner seeks the following relief:a.A declaration that he was validly elected president for the year 2023 -2025 pursuant to Rule 6. 7 of the Election Rules, following his nomination as the sole candidate for tat on 19th September 2023 when the window of nomination was closed.b.A declaration that the decision of the respondent's National Council of 29th September 2023, directing the reopening of the nomination, is unreasonable, an unprocedural exercise of administrative action and is contrary to the respondent’s Constitution thus invalid.c.A declaration that the respondent's National Council decision made on 29th September 2023, violates his rights and/or the rights of its members under articles 27, 28, 33, 38 and 47 of the constitution.d.An order of Certiorariquashing the respondent’s second nomination list issued the respondent’s Executive Director on 16th October 2023 proposing the 2nd interested party as a nominee for the position of president in the elections scheduled for 16th December 2023. e.An order of Mandamusdirecting the respondent to declare the petitioner its president for the year 2023 – 2025 and issue him with a certificate or any other relevant documentation as proof of his re-election.f.Compensation for violation of his rights and fundamental freedoms and costs.

Respondent’s case 25. The respondent has filed a replying Affidavit sworn by its executive director and written submissions in opposing the petition. The respondent confirms that nomination forms were sent out to members on 28th August 2023 while a list of validly nominated members was sent out on 23rd September 2023.

26. On 26th September 2023, a complaint was received from the 2nd interested party that he had not received nomination forms and a soft copy of the updated members’ register as required by the rules.

27. The respondent asserts that on 27th September 2023 the executive council met over the dispute; the petitioner was present and took part as chair of that meeting. The issue was escalated to the national council since there was no dispute resolution committee.

28. The national council met on 29th September and again the petitioner was present. However, by majority, the petitioner was excluded from chairing the meeting or voting because of conflict of interest. The national council determined that this was not a dispute but an error. The national council therefore resolved to recall the nominations and reopen the process afresh.

29. Following that decision, the nomination process for all positions was reopened for two weeks from 2nd October to 16th October 2023. The annual general meeting and elections were also pushed forward by a similar period to 16th December 2023. This was also informed by the fact that nomination forms to Kadhis had been sent through an email that was no longer in use.

30. The respondent asserts that the decision was made in order to respect the members’ right to participate in the elections being their right of association guaranteed under article 36 of the constitution.

31. The respondent denies that the petitioner’s constitutional rights were violated. The respondent maintains that the petitioner was accorded fair administrative action because he attended the meetings of 27th and 29th September 2023. The petitioner’s rights are not above those of other members.

32. The respondent takes the position, that the petitioner’s contention that he was the only candidate validly nominated for the president’s position and should be declared dully reelected, cannot stand in the face of the disclosed anomalies.

33. The petitioner’s expectation could not also be legitimate because all members had a legitimate expectation to receive nomination forms and have an opportunity to participate in the electoral process.

34. The respondent relies on several decisions to support its case. These include: Leina Konchellah & others v Chief Justice and President of the Supreme Court of Kenya & others; National Assembly & others (interested party) [2021] eKLR and Mbae v Speaker, County Assembly of Nakuru & another; others (interested party) Constitutional Petition No. E004 of 2022 [2022] KHC 3313, that one should not benefit from an inadvertent irregularity.

35. The respondent again relies on Kenya Revenue Authority v Export Trading Company Ltd (Petition No. 20 of 2020) [2022] KESC 31 (KLR) (Civil) (17 June 2022) (Judgment) that whether there is a legitimate expectation is more than a question of fact. It should not merely exist in the mind of the aggrieved party but whether viewed objectively, it existed in a legal sense. The legitimate expectation must be reasonable and cannot exist against clear provisions of the law.

36. See also Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) Judicial Review Application E023 of 2021KEHC5 (KLR) (24) January 2022) (judgment) that an expectation that requires the decision maker to make an unlawful decision cannot be a legitimate expectation.

37. The respondent urges for dismissal of the petition.

1st Interested Party’s case 38. The 1st interested party did not take part in these proceedings

2nd Interested Party’s case 39. The 2nd interested party has also opposed petition through a replying affidavit and written submissions. The 2nd interested party states that the email communication received on 28th August 2023did not have nomination forms and declaration of vacancies ahead of the scheduled elections as required by the rules. He therefore lodged a complaint with the respondent on 26th September 2023 over the issue.

40. The national council made a decision on 29th September to re-open the nomination process and changed the elections date to 16th December 2023. The 2nd interested party subsequently submitted his nomination form and was later informed that he had been validly nominated to vie for the position of president.

41. It is the 2nd interested party’s case that the petitioner’s intention is to block a democratic process and impose himself as the respondent’s president. The 2nd interested party urges the Court to balance the rights of the respondent’s members to elect their leaders, his right to participate as a candidate as well as the petitioner’s rights to the same process.

42. The 2nd interested party relies on several decisions to support his case. They include: Jackline Okeyo Manani & 5 others v Attorney General[2018]eKLRthat the petitioner has not demonstrated that he had been discriminated against.

43. The 2nd interested party also relies on the decision in Albert Chaurembo & 7 others v Mauriced Munyao & 148 others [2019] eKLR that courts should allow other organs with authority to exercise such authority without any interference.

44. The 2nd interested party urges that the petition be dismissed with costs.

Determination 45. The core issue in this petition is whether the petitioner’s rights as a nominated candidate for the position of president of the respondent were violated.

46. As alluded to earlier in this judgment, the petitioner and the 2nd interested party are members of the respondent. They are involved in this litigation regarding the respondent’s decision to reopen the nomination process to allow all members take part in the elections due on 16th December 2023. The petitioner opposes that move while the 2nd interested party supports the decision.

47. The elections were due in November 2023 but were rescheduled to 16th December 2023 after it emerged that there had been an electoral irregularity in that some members, like the 2nd interested party and Kadhis, had not received nomination forms that would have enabled them submit their candidacies for any of the available positions in those elections.

48. When counsel for the parties appeared before this court for directions, the court inquired from them whether this dispute could not be resolved in any other way other than through litigation. Counsel asked for time to consider such a possibility and take instructions. When they returned on the next date, the answer was in the negative. The court had no choice but to hear the petition, hence this judgment.

Violation of Rights 49. The petitioner argues that his rights were violated. Violation of rights is forbidden by the constitution. To be violated, the right must be inherent and recognized by the constitution and or the law. The violation or threatened violation must be real or inherently possible but not imaginary. This is so because the constitution and the law protect rights that are inherent to the person and are recognizable under the constitution and the law.

50. Violation of rights may be direct or constructive (indirectly). Violations can also be intentional or as a result of the failure to prevent such violation. Whatever the case, there must be clear or threatened violation of a petitioner’s Rights.

51. One of the Rights the petitioner argues was violated is the right of associate guaranteed under article 36 of the constitution, as a member of the respondent. Article 36 protects every person’s right to freedom of association, including the right to form, join or participate in the activities of an association.

52. The petitioner is as member of the respondent. He therefore has a right to associate and participate in the respondent’s activities, including elections. The petitioner has not argued, and I do not understand the petition to allege, that the respondent has stopped him from participating in any of its activities, including the election for president. Rather, the petitioner’s grievance is that the respondent recalled the nomination process and rescheduled the elections to 16th December when the petitioner was the only validly nominated candidate for the president’s position for that election.

53. The petitioner also argues that the respondent’s action of recalling the nominations and rescheduling the elections was done without jurisdiction in that the rules do not confer jurisdiction on the national council for such action. According to the petitioner, the only body that has mandate to determine a dispute would be the dispute resolution committee which does not, however exist.

54. The petitioner further argues that the 2nd interested party did not comply with rule 6. 4 on presenting disputes and that rule 6. 7 having come into play the moment nomination period closed, he (petitioner) was deemed to have been reelected unopposed.

55. The position taken by the petitioner is a misapprehension and misinterpretation of the rules. Rule 6 governs the respondent’s elections which must be complied with. The process starts with issuance of declaration of vacancy notices under rule 5. 1. This is followed by sending out nomination forms by email to members (rule 6. 1). Members are required to return nomination forms accompanied with other requirements within 21 days from the date of the notice (rule 6. 2).

56. At the expiry of 7 days following conclusion of the nomination period, the executive director is to compile a list of the duly nominated candidates and send the list to members by email (rule 6. 3). Rule 6. 4 requires unsuccessful candidates to lodge appeals within 7 days after receipt of the list of nominated candidates. This rule (on disputes) would come into play where the person lodging the dispute had submitted nomination forms but for one reason or another was unsuccessful.

57. In this petition, the 2nd interested party did not submit nomination because he did not receive the forms and could not have been an unsuccessful candidate. And as the national council correctly observed, this was not a dispute. The 2nd interested party had brought out an irregularity or error in the electoral process caused by the respondent’s officer(s) who failed to send nomination forms to the 2nd interested party.

58. Regarding which of the respondent’s organs had jurisdiction to resolve the issue, I have perused the rules and found no rule providing on how the respondent would deal with the situation the 2nd interested party found himself. In other words, a reading of the rules presupposes that there would be absolute compliance with rule 6 in so far as nominations are concerned.

59. As was readily admitted by the executive council, a dispute resolution committee had not been established. Even if it had, this was not a dispute but an electoral irregularity or error. Given the lacuna in the rules, I agree that the national council being second highest organ, could come in and resolve the issue administratively. This is because the petitioner has not pointed out any provision in the respondent’s constitution or rules that the respondent could draw support from, but which was, however, violated in making the impugned decision to call for this court’s intervention.

60. The petitioner again argues that having been validly nominated and there being no other validly nominated candidate for the same position, rule 6. 7 took effect and he should be deemed to have been reelected and should be declared as such. The petitioner must appreciate that an election is a process. Where one aspect of the electoral process is found to have been faulty or irregular as to cast doubt on the credibility of the election, it voids the entire election.

61. In the present case, the 2nd interested party did not receive nomination forms and declaration of vacancies forms as required by the rules. It has also been admitted that apart from the 2nd interested party, other members did not receive nomination forms. In that respect, the petitioner cannot legitimately argue that he was validly nominated when the rules he seeks to rely on were not complied with. The petitioner cannot be allowed to benefit from such an irregularity. If that were to be allowed, it would not only infringe on the RIghts of the 2nd interested party and other members, but also sanction an electoral malpractice.

62. The petitioner faults the national council for making the impugned decision through raising of hands instead of secret ballots. The question one must ask is whether voting by hands was a violation of the rules. I have perused the minutes of the meeting held on 29th September 2023. The national council stated that it would adopt the procedure earlier used in the previous meeting.

63. A reading of article 10 (4) of the respondent’s constitution shows that each committee is free to adopt its own rules of procedure for transacting its business. Article 14(2) states that voting for officials and resolutions provided for in the constitution is by secret ballot.

64. The minutes of the national council’s meeting of 29th September 2023 shows that the national council agreed to adopt the procedure adopted in the previous meeting. The petitioner was present in both meetings and there is nothing on record to show that he voiced objection to the procedure the national council adopted earlier or it was adopting in that meeting.

65. In my respectful view, where members chose to vote by show of hands which had been adopted in the previous meeting without objection, that would not amount to an illegality capable of invalidating the impugned decision, and the petitioner cannot be heard to complain now only because his wish did not prevail.

66. Further, the petitioner’s appeal against the national council’s decision was rejected by the national council itself and not the executive director. This fact clearly emerges from the letter dated 23rd October 2023 from the executive director to the petitioner, informing him that his appeal was placed before the national council but was rejected.

67. In rejecting the appeal, the national council was of the view, that the petitioner was present in its meeting but could not vote and the national council had already determined that what was before it was not a dispute but an error. In that respect, I find no fault in the manner the national council arrived at its decision.

Fair Administrative Action 68. The petitioner again argues that the impugned decision violated his right to fair administrative action guaranteed under article 47. Article 47 guarantees every person’s right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

69. Article 47 embodies the doctrine of reasonableness that was developed by the English courts. The test of reasonableness was enunciated in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, that a public authority acts unreasonably when a decision it makes is so absurd that no sensible person could ever dream that it lay within the powers of that authority.

70. The principle was amplified in Council of Civil Service Union v Minister for Civil Service [1984] UKHL 9 where Lord Diplock stated that “illegality” [unreasonableness] applies where “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

71. For a decision to be unreasonable, it must be such that a right thinking man faced with similar circumstances would not come to a decision such as the one impugned.

72. Article 47 lays a constitutional control over power and that of other administrative bodies’ decisions to meet the standards encapsulated in the Bill of Rights. Article 47 looks at both substantive and procedural fairness. The administrative action must expeditious- which means the decision making body should act without delay; efficient- the decision making body should be effective in the decision making process and the decision must be lawful-the decision must be legal devoid of illegality.

73. "Illegality" is a ground for impugning a decision. The decision-maker must correctly understand the law that regulates the decision-making power or process and give effect to it otherwise, the decision will be impugned on grounds of illegality.

74. The action must also be procedurally fair. Procedural fairness requires the decision maker to observe basic rules of natural justice towards the person who will be affected by the decision. The party to be affected by the decision must be given an opportunity to be heard before the decision is made.

75. The petitioner’s claim that his right to fair administrative action was violated lacks merit. This is so, because his own documents show that he was present when the executive council which he chaired made the decision of 27th September 2023. The petitioner also attended the national council’s meeting of 29th September 2023, although he did not take part or vote since majority of the members felt he was conflicted.

76. The petitioner, apart from stating that his right to fair administrative action was violated, has not attempted to demonstrate how the decision was inefficient; ineffective; unlawful or unreasonable. The petitioner’s argument that the decision was made without jurisdiction has already been addressed in that the petitioner has not shown the rule dealing with the issue of non delivery of nomination forms to member and which provides for redress, but which the national council violated in making the impugned decision.

77. The petitioner has again not shown that the decision was unreasonable in the circumstances of this case. Reasonableness of a decision would depend on the circumstances of the case. In this regard, the petitioner has not shown that the impugned decision was absurd, outrageous in its defiance of logic, or of moral acceptance to any person called upon to apply the same set of circumstances the respondent faced, to be unreasonable.

78. Rather, it would have been outrageous and devoid of logic for the respondent to uphold the nomination process and the eventual outcome in what was not only a violation of the rules but also members’ right to participate in a free, fair and democratic electoral process that is simple, open, transparent and accountable.

79. The theme of fair, open, transparent, accountable and democratic elections rings large in our constitutional scheme and must permeate and gain firm foothold in all institutions and organs that profess democracy in our country, not least, the respondent.

80. In the circumstances of this petition, I am unable to find fault in the respondent’s decision that was intended to correct an inherent irregularity and error that would, without a doubt, have violated not only the 2nd interested party’s rights, but also rights of other members thereby cast the respondent’s democratic record in bad light.

Legitimate Expectation 81. The petitioner further argues that the impugned decision violated his legitimate expectation. In the Council of Civil Service Union v Minister for Civil Service (supra), Lord Diplock stated that legitimate expectation is one which "has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, though might well be entertained by a 'reasonable' man, would not necessarily have such consequences.”

82. Lord Diplock emphasized that for legitimate expectation to arise, the contested decision must have the effect of depriving the person some benefit or advantage, which he had been permitted in the past by the decision maker to enjoy. In this regard, legitimate expectation is thus a question of law that has to be decided by applying an objective test with reference to the facts of the particular case.

83. The position in law is that there would be no legitimate expectation if the expectation is ultra vires or against the law, such as where the decision maker lacked power or authority to make the decision or the decision is against statute.

84. In Canada (Attorney General v Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, the Supreme Court of Canada observed:(68)Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.…It will be a breach of the duty of fairness for the decision maker to fail in a substantial way to live up to its undertaking.

85. See also Communication Commission of Kenya & 5 others v Royal Media Serivices Ltd & 5 others [2014] eKLR (par 268)- the Supreme Court decision) and Kenya Revenue Authority v Export Trading Company Ltd(Petition No. 20 of 2020) [2022] KESC31 (KLR) (Civil) (17 June 2022) (Judgment).

86. For the expectation to be legitimate, there must be a representation that is clear, unambiguous, unqualified, procedural and within the decision maker’s authority.

87. In the circumstances of this petition, I am unable to agree that the petitioner’s legitimate expectation was violated. The legitimate expectation, if anything, was that which the respondent’s constitution and rules conferred on all members for open, transparent, accountable and democratic elections. In my view, the expectation that would have been violated was that of the 2nd interested party and other members of the respondent who did not receive nomination forms if the respondent locked them out of the nomination process, and deny them the opportunity to make a choice to seek election or not.

88. Before concluding this matter, let me say this: Having perused the record of proceedings of the executive council and the national council of 27th September 2023 and 29th September 2023, respectively, I doubt the soundness of the petitioner’s decision to take part in those deliberations being an interested party as the issue under consideration concerned nominations where he had a stake.

89. Even though he was a member of the two organs and the chair, good sense would have required of the petitioner to stay out of those meetings. That indeed, is the essence of procedural fairness.

90. The petitioner being a candidate for the position of president which the 2nd interested party wanted to take part in, would not be expected to act objectively in the deliberations concerning, whether or not a dispute (as he put it) or an error (as the respondent argued), existed-since no man should be a judge in his own cause (Nemo iudex in causa sua), a fundamental principle of justice and fairness.

91. This principle speaks to the fact that a person should not be the decision-maker in a case in which he has a personal interest. Since the petitioner had a personal interest in the outcome of the matter under consideration, created a conflict of interest or bias which could undermine fairness and impartiality in the decision-making process. The national council was, therefore, right in excluding the petitioner out of its deliberations and the ultimate decision.

Conclusion 92. In the end, having considered the petition, responses and respective arguments by parties, the inevitable conclusion is that there was no violation of the petitioner’s known rights. The respondent acted fairly in preserving its democratic processes.

93. There was neither violation of the petitioner’s right to fair administrative action nor legitimate expectation.

Disposal 85. The petition is for dismissal and is dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 1STDAY OF DECEMBER 2023E C MWITAJUDGE