[2022] KEHC 648 (KLR)

Mberia v Independent Electoral and Boundaries Commission IEBC Returning Officer & 4 others; Muthoni (Interested Party) (Miscellaneous Application E063 of 2022) [2022] KEHC 648 (KLR) (Judicial Review) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 648 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E063 of 2022

J Ngaah, J

June 17, 2022

Between

David Njilitha Mberia

Applicant

and

Independent Electoral and Boundaries Commission IEBC Returning Officer

1st Respondent

IEBC Returning Officer Langata Consituency

2nd Respondent

Chairperson ODM National Elections Board

3rd Respondent

Orange Democratic Movement Party

4th Respondent

Ethics & Anti-Corruption Commission

5th Respondent

and

Anthony Maragu Muthoni

Interested Party

Ruling

1. The application before court is a chamber summons dated 6 June 2022 in which the applicant is seeking for leave to apply for the judicial review orders of prohibition, mandamus and certiorari. The prayers for these orders have been framed as follows:"1. That this application be certified as urgent and heard ex parte in the first instance.2. That leave be granted to the ex parte herein to apply for an order of certiorari do (sic) issue to remove into this court for purposes of quashing the decision of the 1st respondent disqualifying the ex parte applicant from election as a member of County assembly Karen ward as communicated vide its media release communique dated 4 July 2022; title; “status update on aspirants’ compliance with the Chapter 6 of the Constitution”.3. That leave be granted to the applicant herein to apply for judicial review order of prohibition do (sic) issue directed at the 3rd and 4th respondent (sic) prohibiting them or any of their agents or persons acting through or under them or under their directives from nominating or issuing any other aspirant or person with the ODMnomination certificate for MCA Karen ward or presenting of (sic) forwarding the name of any other aspirant as the party nominee for the said Ward.4. That leave be granted to the applicant herein to apply for judicial review order of prohibition do (sic) issue directed at the 1st and 2nd respondent(sic) prohibiting them or any of their agents or persons acting through or under them or under their directives from receiving, clearing, registering and/or gazetting the name of any other aspirant as the valid nominee or candidate of the 4th respondent for MCA Karen Ward.5. That leave be granted to the applicant herein to apply for judicial review order of mandamus do (sic) issue directing an order compelling the 1st and 2nd respondents to receive the nomination papers, clear, register and issue the ex parte applicant with a certificate of registration for MCA Karen Ward.6. That the grant of leave aforesaid do operate as a stay of enforcement of the said orders and or any proceedings founded thereon until the determination of this application.7. That the costs of the application be provided for.”

2. The application is based on the statutory statement dated 6 June 2022 verified by the applicant’s own affidavit sworn on even date.

3. According to the applicant, he is a member of the 4th respondent political party and that on 9 May 2022 he was validly nominated by the 3rd respondent as the party’s nominee to contest for seat of member of County assembly, Karen Ward in the forthcoming August, 2022, general elections. Following this nomination, the 4th respondent forwarded the applicant’s name to the 1st respondent (which I will also refer to as IEBC in the alternative) as the party’s candidate.

4. On 31 May 2022, the applicant received communication from the 2nd respondent inviting him to appear before her on 6 June 2022 for the exercise of registration of, apparently, the contesting candidates. However, before the applicant could appear on the scheduled date, the chairman of the IEBC made a press release according to which, amongst other things, the applicant was disqualified from participating in the general elections and more particularly, contesting as the 4th respondent’s candidate for the Karen Ward member of County assembly seat.

5. According to the media release, the 5th respondent had compiled a report in which it was found that the applicant did not comply with the Chapter 6 of the Constitution on leadership and integrity. In particular, the applicant had been charged and convicted in the Nairobi Magistrates’ Court Anti-Corruption Case No. 7 of 2019 with the offences of bribery under section 6 as read with section 18 of the Bribery Act. In convicting the applicant, and pursuant to section 18 of the Bribery Act, the court also barred the applicant from holding public office. According to the 5th respondent’s report, the applicant was “required to prove that he has referred an appeal challenging the conviction and the result thereof.”

6. Based on the recommendation by the 5th respondent, the 1st respondent proceeded to disqualify the applicant without giving him the opportunity to present the evidence that he had not only paid the fine but more importantly, he had lodged an appeal against his conviction.

7. The respondents and interested party opposed the application and filed replying affidavits to that effect. Apart from these affidavits, the first two respondents and the interested party filed notices of preliminary objection contesting the jurisdiction of this honourable court to determine the dispute which the applicant intends to lodge. The preliminary objection by the 1st and 2nd respondents is dated 13 June 2022.

8. It is the 1st and 2nd respondent’s case that the jurisdiction of this honourable court is wanting in light of the provisions Article 88 (4) (e) of the Constitution and section 74 (1) of the Elections Act, cap. 7. Further, the suit is premature by dint of the provisions of section 9 (2) and (3) of the Fair Administrative Actions Act2015.

9. The interested party added his voice to this objection and stated that section 4 of the Independent Electoral and Boundaries Commission Act, cap. 7A makes it mandatory for disputes arising from nominations to be heard and determined only by the Independent Electoral and Boundaries Commission.

10. Since the preliminary objections go to the jurisdiction of this Honourable Court, they have to be determined in limine before delving into any other issue. In any event, in determining whether an applicant deserves leave to file the substantive motion for the prerogative orders of judicial review, it is not open to the court to delve into the merits of the envisaged application.

11. All that a judicial review court would ordinarily be concerned with in an application such as the present one would be whether the applicant has made out an arguable case which upon consideration may merit the grant of all or any of the judicial review orders that the applicant seeks. The leave stage of the proceedings is not meant to determine whether or not the applicant’s case will succeed but whether it is arguable.

12. In IRC v National Federation of Self-Employed and Small Businesses Ltd (1982) 617, [1981] 2 ALL ER 93) Lord Diplock said:“If, on a quick perusal of the material then available, the court thinks the application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”

13. Thus, on this basis, the applicant only has to show not that it is, but that it might turn out to be, an arguable case. It is therefore of no use interrogating in detail an applicant’s application at this stage of the proceedings.

14. Turning back to the objections, one of the factors the court must consider when exercising its discretion to grant or not to grant leave to file the substantive suit for any of the judicial review orders of prohibition, certiorari and mandamus is whether an alternative remedy is open to the applicant. The application for leave will be rejected if the alternative is equally convenient and an appropriate safeguard against abuse. But I must add that the alternative remedy may not always be an end in itself but rather it could be a condition precedent to an application for judicial review.

15. In the present case according to Article 88 (4)(e) of the Constitution, the IEBC is responsible for settlement of disputes relating to or arising from nominations. It provides as follows:(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(e)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;

16. Section 74 of the Elections Act picks up this theme and makes it clear that the IEBC is not only responsible for resolution of this sort of disputes but also that it must resolve them within seven days of the date of their lodgment. It states as follows:74. 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 subsection (1) shall be determined within seven days of the lodging of the dispute with the Commission.(3)Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable

17. The applicant’s dispute is, no doubt, a dispute relating to or arising from nominations and therefore it ought to have been lodged, at the very first instance, with the IEBC.

18. If, for any reason, the applicant was apprehensive that the IEBC had already taken a position on the dispute and was biased against the applicant, as Mr. Ayieko, the learned counsel for the applicant urged, then the applicant ought to have sought exemption from this court under the section 9 (4) of the Fair Administrative Action Actto be excused from the procedure prescribed by the provisions of the Constitution and the Elections Act.

19. For better understanding and, considering that the entire section 9 of the Fair Administrative Action Act is pertinent to the question at hand, it is necessary that I reproduce it here; it states as follows:9. Procedure for judicial review.(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. (Emphasis added).

20. While the applicant is entitled to seek remedy by way of judicial review to address grievances that he may have suffered as a result of an administrative action, he must first exhaust all other avenues through which his grievances may be addressed including what the Act describes as “internal mechanisms for appeal or review”. For our purposes, these would certainly include those prescribed by the Constitution and the Act.

21. It does not matter that the applicant harboured some degree of apprehension that he was unlikely to get a fair hearing from the IEBCconsidering the position it had taken. That in itself could not stop the applicant from invoking the provisions of the law and formally lodge its complaint to IEBC for determination; and if the applicant found that process not viable it was always open to him to seek exemption of his dispute from the jurisdiction of theIEBC. I suppose it is in the context of the application for exemption under section 9(4) of the Fair Administrative Action Act that the court could consider whether it was reasonable to have the applicant’s complaint determined by the IEBC. Whether his fears were warranted or not, it is not open to the applicant to sidestep the prescribed procedure and move this court for the judicial review orders sought.

22. The words of Donaldson MR in R versus Panel on the Take-Overs and Mergers, ex parte, GuinnessPlc [1990] 1QB 146, at page 177-178 are apt on this point; the learned judge said:“It is not the practice of the court to entertain an application for judicial review unless and until all avenues of appeal have been exhausted, at least insofar as the alleged cause of complaint, could thereby be remedied... It is not for the court to usurp the functions of the appellate body.”

23. I would, therefore, sustain the respondents’ and interested party’s preliminary objections not necessarily because the court lacks jurisdiction but because the alternative remedy goes to the relief rather than jurisdiction. (See Leech versus Deputy Governor of Parkhurst Prison [1988] AC 533 at page 580 C-D & 581D-E per Lord Oliver)

24. But even if the applicant’s application was properly before court, I would still find it deficient in some vital respect which is that it is not apparent from the statutory statement which of the grounds of judicial review the applicant’s motion would be anchored, assuming leave is granted.

25. It is trite that one of the vital components of an application for judicial review is the grounds upon which it is made. They are important because Order 53 Rule 1(2) states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).

26. And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.

27. What are these grounds?

28. The grounds for judicial review were enunciated in the English case of Council of Civil Service Unions v Minister for the Civil Service[1985] A.C. 374,410 in which Lord Diplock set out the three heads which he described as "the grounds upon which administrative action is subject to control by judicial review ”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223). It applies to 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. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

29. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis and it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.

30. What the applicant has stated as grounds of his application in the statement is more or less a rehash of the depositions made in the verifying affidavit. These cannot be said to be the grounds contemplated in Order 53 of the Civil Procedure Rules and in Lord Diplock’s dictum in the Council of Civil Service Unions versus Minister for the Civil Service (supra). The applicant has largely left it to the court to speculate which of the grounds of judicial review that his intended application is to be anchored.

31. But as I have said in cases of this nature, the court cannot, and need not speculate on what is on the mind of any particular applicant because it is the applicant’s obligation, in the first place, to state in precise, specific and unambiguous terms the ground or grounds upon which he seeks a judicial review court to intervene and impeach the administrative action in issue.

32. While reiterating the importance of stating grounds for judicial review in concise and precise terms Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34. 1 states as follows:“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”

33. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.

34. It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built. The applicants’ application is such an application and for this reason it cannot see the light of day.

35. In the ultimate, I have to reach the inevitable conclusion that the applicant’s application is not just misconceived but it is bad in law as well. It is hereby dismissed but I make no orders as to costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 17TH JUNE 2022NGAAH JAIRUSJUDGE