[2022] KEHC 10541 (KLR)

Malesi v Mbuni & 2 others (Constitutional Petition E002 of 2022) [2022] KEHC 10541 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10541 (KLR)

Republic of Kenya

In the High Court at Vihiga

Constitutional Petition E002 of 2022

PJO Otieno, J

July 5, 2022

Between

David Mukoyani Malesi

Petitioner

and

Paul Jiseve Mbuni

1st Respondent

Moses Akaranga

2nd Respondent

Independent Electoral & Boundaries Commission

3rd Respondent

Ruling

1. When served with the Petition seeking to challenge his eligibility to run as a running mate of the 2nd Respondent for the gubernatorial elections from Vihiga County, the 1st Respondent, filed upon the Petitioner a Notice of Preliminary Objection fashioned and crafted as follows:-1. The Court lacks the jurisdiction to entertain the matter being a nomination dispute whose jurisdiction lies with the IEBC Disputes Resolution Committee as the first post by virtue of Article 88(4)e of the Constitution as read together with Section 74 of the Elections Act. The Petition violates the doctrine of exhaustion.2. The Petition herein is time barred and in the wrong forum since nomination disputes were to be submitted to the IEBC Disputes Resolution Committee on or before 9th June 2022. Electoral timelines are strict and cast in stone.3. The Petition is misconceived as the purported impeachment of the 1st Respondent which is the crux of the Petition was styed by this Court in Vihiga High Court Constitutional Petition No. E006 of 2021 (as consolidated with E005 and E007 of 2021) on 21st June 2021. It is a matter of judicial notice that the purported impeachment was stayed by a Court of competent jurisdiction being this very Court.4. The Petition is an abuse of the Court process and contemptuous to this Court as the Petitioner has founded the claim on the position taken by the Governor of Vihiga County, Wilber K. Ottichilo of defying Court Orders and holding his position as Governor or otherwise to be superior to court Orders and the rule of Law. It is a demonstration citizens learning from their leaders how to treat Court Orders.5. In any event, even if there was a proper impeachment of the 1st Respondent (which we object), Article 193(3) of the Constitution provides that;“a person is not disqualified under Clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.”It is common sense that the impugned impeachment being at the trial Court, the possibilities of appeal or review are humongous.6. The Petition is simply nonstarter, misconceived and an abuse of the Court process.

2. On the date set for the inter partes hearing of the application for conservatory orders, Counsel informed the court that, they were all ready to canvass the Preliminary Objection by way of oral submissions.

3. In his submissions, the Counsel for the 1st Respondent, Mr. Sore argued the notice on three strands; jurisdiction of the Court, time bar and judicial notice. On jurisdiction, Counsel invoked the provisions of article 88 and Section 74 of the Elections Act to vest the primary jurisdiction upon the Independent, Elections and Boundaries Commission Disputes Resolution Committee and that the jurisdiction of the court is deferred or delay and limited to supervision by way of appeal and judicial review, in checking if the conduct by the Committee was legal, just or procedural.

4. To the Counsel for the 1st Respondent, the dispute was one on nomination which the duty bearer, IEBC, had reserved to be conducted between the 9th and 20th June 2022 and that a gazette notice No. 431 dated 20. 01. 2022 was issued to that effect. Despite such notice, the counsel contends, no recourse was made to the statutory and constitutional set forum for the presentation of the dispute hence the court’s jurisdiction is viewed as having been prematurely and improperly invoked as no demonstration was made that the forum provided had been approached and its processes and jurisdiction exhausted.

5. It was also pointed out that even if the Petitioner was to be directed to comply with the law, the window for going to the Committee has since closed hence the matter is time barred and thus overtaken by events.

6. On judicial notice, the Counsel invited the court to take notice that the question of the impeachment of the 1st Respondent by the County Assembly of Vihiga was a live issue before the court in Vihiga High Court Constitutional Pet. No. E006/2021 (Consolidated with E005 and E007/2021) wherein the said impeachment has been challenged for having been conducted in violation of the court order, has been stayed by the court but is in any event continues to be litigated hence is not a disqualification pursuant to article 193(3) of the Constitution.

7. On those grounds, the 1st and 2nd Respondents beseeched the court to find the Preliminary Objection as merited and to strike out the petition and the motion filed within it, with costs to them.

8. In opposition to the objection, the Petitioners’ Counsel, Mr. Mtange submitted that this court’s original jurisdiction under article 165(3) is unlimited in both civil and criminal matters adding that the Interested Party is a public body amenable to supervision by the court even on matter that are actively pending before it. He added that the Court’s jurisdiction has not been and cannot be constrained or ousted by the gazette notice issued by the Interested Party adding that even the stay of the orders of impeachment issued by the Court in Petition No. E006/2021, as consolidated, can be set aside by the Court suo moto in order to deal with a mischief by the 1st Respondent in unduly prolonging the matter and curtailing its expeditious and logical conclusion. He urged that the objection be dismissed so that the Court considers the Petition and the Motion on the merits.

9. Mr. Sore Advocate for the 1st Respondent donated his slot to respond and give rejoinder to Mr. Malenya for the 2nd Respondent. In his rejoinder Counsel for the 2nd Respondent, who had at the onset intimated to support the Preliminary Objection, submitted to that the unlimited jurisdiction of the court does not negate on, in his words, the notorious doctrine of exhaustion established by stare decisis. He put the doctrine to dictate that where there is a constitutional or statutory provided forum for resolving a dispute, the jurisdiction of the court is delayed or postponed pending the resort to such fora and that parties are obligated to resort to such fora and not to merely ignore or circumvent it. He added that there was no allusion to the provided for a being approached to exhaustion and that the court’s delayed jurisdiction would only kick off after the jurisdiction of the committee has been exhausted. He referred the court to Section 9 of the Fair Administrative Actions Act asserting that it dictates that the High Court gives the alternative mechanism a chance before seeking to entertain a dispute, thereby subject, unless the exceptional circumstances exist that justifies the entertainment of the dispute for the interests of justice to be met.

10. On tinkering with orders in Pet. No. 6/2021, Counsel submitted that it is neither tidy nor tenable for the court to use this file to upset orders in another file and that it can only interfere with the orders in that file when properly and appropriately moved by a party within that file. He supported the Counsel for the 1st Respondent that the Preliminary Objection be upheld and the petition struck out.

Analysis and determination 11. Whether or not the court has the requisite jurisdiction to deal with a matter is a threshold issue, all important and indeed everything, that must be dealt with before hand before the next step is taken. It flows from the constitution, statute or both, cannot be created by the parties bestowing it upon the court nor can the court arrogate same to itself

12. In this matter the cause by the Petitioner, as pleaded, is that the 1st Respondent stand ineligible and unqualified to run as a running mate of the 2nd Respondent because he was impeached and stands impeached by the County Assembly of Vihiga hence he is unfit to hold a public office and his joint candidature with the 2nd Respondent is in conflict with and offensive to provisions of Chapter 6 of the Constitution of Kenya and an abuse to public trust and in addition, that any consequential participation by the Respondent in the forthcoming General Election is unlawful, and any ensuing results be deemed null and void.

13. The dispute as pleaded thus impugns the decision of the Interested Party to accept the nomination of the 1st Respondent as a running mate to the 2nd Respondent.

14. How to contest nomination of a candidate is provided for under Article 88(4)(e) of the Constitution, Section 74 of the Elections Act and the Elections (General) Regulations. I entertain no doubt in my mind that the disclosed grievance by the Petitioner is nothing more than the nomination of the 1st Respondent as a running mate. That to the court is a nomination dispute that ought to have been litigated before the 1st Respondent’s Disputes Resolution Committee pursuant to article 88(4) of the Constitution and Section 74 of the Elections Act. In the gazette notice alluded to above, it was notified from the injunction of the general public that:-“Disputes relating to or arising from nominations shall be determined within ten (10) days of the lodging of the dispute with the Commission. The lodging of the dispute shall not be later than Thursday, 9th June 2022. ”

15. The Petitioner contends that he was not obligated to go to the mechanism provided by both the Constitution and Statute on the basis that the court is vested and bestowed with unlimited jurisdiction under article 165 (3) of the Constitution.

16. The Kenyan Superior Courts have, said times innumerable, that the constitution must be given a purposive and holistic interpretation so that a clause support rather than destroy the other(s)

17. For this matter what article 88(4) (e) demands must be extrapolated and contextualized as against article 165 (3) and a determination made on whether there exist a conflict. To the court no conflict whatsoever can be imported into the two provisions. They remain part of the one whole which must support each other, not destroyed each other.

18. Article 88 (4) like any other article in the Constitution and any statutory provision which create fora for dispute resolution must never be seen to negate on the provisions of article 165 (3) (a) but as supplemental to dispute resolution only postponing and not ousting that jurisdiction of the court. In Kenya Ports Authority –vs- Modern Holdings Ltd [2017] eKLR, the Court of Appeal when faced with the interpretation of Section 62 of the Kenya Ports Authority Act, as against article 165 (3) had this to say:-“It is, in our respectful view, a misapprehension of the law to argue that, to the extent that section 62 provides that, “where any person suffers damage, no action or suit shall lie”, that that section is inconsistent with the Constitution for limiting the right to access to justice. The provision does not at all oust the jurisdiction of the court but merely limits and postpones it in the first instance. By Article 165 (3) (e) and (6) the High Court retains both appellate and supervisory jurisdiction. Article 165 (6), the High Court has supervisory jurisdiction:“….over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function…..and may call for the record of any proceedings before any subordinate court or person, body or authority ......and may make any order or give any direction it considers appropriate to ensure the fair administration of justice”.Section 62 aforesaid only provides a simpler, faster and cost-effective avenue of disputes resolution. The parties, must in the first place, themselves explore a settlement on the quantum of compensation, failing which the Chief Justice is required to appoint a single arbitrator to determine the quantum. The award of the single arbitrator is subject to the High Court's supervisory jurisdiction or to an appeal. In other words court adjudication is treated in this instance as the final stage in the dispute resolution process.”

19. That decision was challenged in the Supreme Court and the court delivered itself in the following words:-“For these reasons, we affirm the Court of Appeal decision that Section 62 of the KPA Act is not unconstitutional. It simply provides for ADR mechanism of arbitration reinforced by Article 159(2)(c) of the Constitution.”

20. These two decisions which are binding upon this court reiterates the law that alternative dispute resolution vested in other organs or bodies by the Constitution or statute doesn’t derogate from the jurisdiction of this court under article 165 (3) but are supplemental to the same by way of inviting expertise for the goal of speedy, expeditious and efficient dispute resolution by bodies equipped with specific expertise in the specific field. In the context of this matter, Kenyans by their social contract in the Constitution deemed it more appropriate and efficient that the Interested Party is best equipped to resolve nomination disputes. That constitutional body must be allowed to execute mandate undeterred and this court must guard against being viewed as keen to arrogate to itself the jurisdiction that belongs to the Interested Party.

21. That said, there is no doubt in the mind of the court that the date and time to conduct the general elections is cast in stone and incapable of being tinkered with by any organ including the court. That firm position on when the elections must be held places upon all concerned, especially the Interested Party an enormous pressure, and obligation to put in place efficient, sufficient and adequate preparations to deliver credible and acceptable elections within the very limited time now left. If the court was to entertain all and every dispute in addition to what genuinely belongs to it the calendar for election may be in jeopardy.

22. The need for alternative fora for dispute resolution was well captured in the Kenya Ports Authority case (supra) when the Supreme Court said:-“In the above context, it is common knowledge that the backlog of cases is an unsettling issue in our country. Some pending cases are as old as twenty and even thirty years. Even before the promulgation of the 2010 Constitution, arbitration had long been identified as one of the major ADR mechanisms. The objective behind the enactment of the Arbitration Act No. 4 of 1995, as is manifest from the Parliamentary Hansard Report of 20th July 1995, was to repeal the Arbitration Act of 1968 and enact a new legislation that adapts the UNCITRAL Model Law and thus entrench arbitration as an alternative dispute resolution mechanism in Kenya in accordance with international arbitration standards. We cannot detract from that.”

23. It must be reiterated and underscored that the High Court with unlimited jurisdiction does not warrant and ordain it the only and exclusive dispute resolution forum. It must be further repeated that article 165 (3) doesn’t make all other complementary dispute resolution mechanism and fora otiose, irrelevant or less befitting. That is the reason behind the now well established doctrine of exhaustion well captured by the Court in the case of Republic –vs- National Environment Management Authority ex parte Sound Equipment Ltd[2011] eKLR:-“... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it....”

24. Here, there has been no justification for failure to approach the forum dictated by article 88 (4). There is equally no allegation or demonstration that the matter justifies the exception to the exhaustion principle. The court finds that in approaching this court the Petitioner sidestepped or circumvented the statutory and constitutional provisions. That must not be countenanced by a court of law. I find that the petition is barred for failure to exhaust the alternative dispute resolution mechanism provided. On that score I do strike the petition out.

25. I would have hesitated to go into the merits with the foregoing decision and conclusion but it is important to note that I have just delivered my determination in Pet. No. E006/2021 as consolidated with two others and I take notice that the question of whether or not the 1st Respondent was validly impeached is still live, the purported impeachment was stayed on the basis it was pursued in contempt of a court order and the matter is therefore well covered by article 193 (3) of the Constitution. Even by way of passing I consider the petition to be capable of being viewed as improperly conceived.

26. On costs, I do award the cost of the petition to the Respondent as a way of court’s displeasure at parties who would want to circumvent the law designed to aid and promote expeditious and speedy disposal of disputes.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 5TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Mtange for the Petitioner for the ApplicantMr. Sore for the 1st RespondentMr. Malenya for the 2nd RespondentCourt Assistant: Kulubi