[2017] KEHC 467 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL & JUDICIAL REVIEW DIVISION

PETITION NO. 36 OF 2017

MICHAEL KANJA KAGORI.......................................................PETITIONER

VERSUS

1. INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION (IEBC)

2. PARTY OF DEMOCRATIC UNITY (PDU)

3. ANTONY NJOMO MAINA

4. THE CLERK TO THE LAMU COUNTY ASSEMBLY

5. COUNTY ASSEMPLY OF LAMU

6. THE REGISTRAR OF POLITICAL PARTIES…..……..RESPONDENTS

R U L I N G

1. Having been served with the Petition by the Petitioner, the 1st and the 2nd Respondents filed and served Notices of Preliminary Objections, contesting the jurisdiction of the court to entertain the petition. The two notices of preliminary objection read and were expressed as follows:-

By 1st Respondent:

i) According to Article 87(I) of the Constitution read together with Section 75(IA) of the Elections Act 2011 a question as to the validity of the election of a member of a county assembly ought to be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice and therefore this Honorable Court lacks jurisdiction to entertain this petition.

ii) It is trite law that where a statute established a dispute resolution, then that procedure must be strictly followed in resolving the dispute.

iii) The Application and Petition before the Court is therefore bad in law for having contravened express statutory provision and should be struck out with costs.

By the 2nd Respondent

i) THAT this Honourable court lacks the jurisdiction to hear the petition filed herein.

ii) THAT the application is incurably defective and should therefore be struck out.

iii) THAT the petition is hopelessly misconceived, frivolous, totally devoid of merit andmala fidesfor the reasoninter alia, that the petitioner did not exhaust the IEBC mechanisms as the law stipulates.

iv) THAT this application has been overtaken by events as the 3rd petitioner has already been elected and which election can only be challenged through an election petition in the manner provided for under Section 75 of the Elections Act.

2. When the matter came before court for hearing of the Application for conservatory orders, Mr. Mogaka for the petitioner, sought and was granted leave to amend the petition which he did within minutes after the order. The amendments initiated are largely to introduce the provision of the constitution and the law upon which the petition is grounded and to clarify the prayers in the petition. At the same sitting it was directed that the Notices of Preliminary Objection, as they touched on the jurisdiction and competence of the petition, would be heard in limine and prior to the application for conservatory orders.

3. This ruling is therefore on the merits of the Notices of Preliminary Objection and not the merits of the petition.

Submissions by the parties.

4. The first Respondent did file written submissions with the Notice of Preliminary Objection on the 22/8/2017. It is the written submission the 1st Respondent reiterated in court orally to support the Notice of Preliminary Objection. The long and short of the submissions is that Article 88(4)e of the Constitution and Section 75 (A1) of the Elections Act establish the mode and forum of challenging an election to a County Assembly and that a Constitutional Petition filed in the High Court is not the mode nor is the High Court the forum to challenge the election of the 3rd Respondent. Putting the provisions of the law into context the 1st Respondent has pointed out that the general elections having been conducted on the 8/8/2017 and the 3rd Respondent declared the winner thereafter, but before the petition was filed, the petitioner was by law bound to file an election petition rather than a constitutional position. To the 1st Respondent, even though the petition as amended is expressed to seek declaration of violation of Articles 10, 27, 47, 48 and 50 of the constitution as well as the provisions of the political parties and Elections Act, the same has the sole goal and purpose of invalidating the election of the 3rd Respondent at the General Election of 8/8/2017. To the 1st Respondent, that cannot be done by this petition as prescribed.

5. The 1st Respondent then puts reliance on decided case cited in the submissions and in particulars SPEAKER OF NATIONAL ASSEMBLY VS KARUME [1993-2009] 1 EAGR 522, for the proposition that where the constitution or a statute provide a procedure for dispute resolution, that procedure must be adhered to the letter and strictly. In so submitting the 1st Respondent took the position that an election petition is a special jurisdiction ordained by the constitution and the statutes enacted pursuant to constitutional dictates.

6. The 1st Respondent equally cited to court, the decision by Supreme Court in RE: THE INDEPENDENT ELECTORATE AND BOUNDARIES COMMISSION [2011] eKLR for the proposition that a question of jurisdiction must be decided right way as and when raised because the court ought not to arrogate for itself jurisdiction not donated to it by the law.

7. The decision in Republic experte MFIDA MOHAMMED VS THE COUNTY RETURNING OFFICE, KILIFI & OTHERS [2013] eKLR was then cited for the same proposition of law that where there is a constitutional or statutory procedure for settling a dispute, it ought not to be departed from. In that decision, Odunga J, cited with approval the decision on Ferdinand Waititu vs IEBC & Other, Election Petition No. 1 of 2013 where the court said;

“……a party seeking to file a petition to challenge election results must comply with the requirements of the Elections Act and Rules made there under for they provide a specific procedure for the presentation, hearing and determination of petition”.

8. The 1st Respondent lastly cited the decision in Republic experte

Salome Kirito Mutua vs IEBC & Another [2015] eKLR when J.A. Kamau J said:-

“Having considered the authorities relied upon by the Respondent and in the absence of any by theexperteapplicant, and there being no dispute to the fact that the interested party is a member of Meru County Assembly by virtue of gazettement, I agree with the Respondent that the mode not the applicant ought to have applied in challenging a duly gazette member of a County Assembly is by way of an election petition and not by way of judicial Review as is the case in the present application”.

Submission by the 2nd Respondent

9. The 2nd Respondent, Party of Democratic Unity, also filed written submissions dated 25/8/2017 on the 28/8/2017 and Mr. Wetaba advocate did attend court to urge the preliminary objection on behalf of the said 2nd Respondent. In sum, the 2nd Respondent objects to the petition on the grounds that the same is filed in an inappropriate forum by dint of the provisions of Article 88(4) in that this court is not the election court to determine the invalidity of election of the 3rd Respondent and that the challenge could only be lawfully mounted by an election petition and not a constitutional petition. On the admitted fact that pursuant to the challenged nomination, the 3rd Respondent has since been declared electoral by the returning officer, the 2nd Respondent argued that the remedies sought by the petitioner have been overtaken by events and thus incompetent. The 2nd Respondent then sought reliance upon the decisions by the High Court, Lenaola J, as he then was, and Wakiaga J in Nairobi JR No. 61 of 2013 and Election Petition Appeal No. 102 of 2017, respectively, for the proposition of law that the 1st Respondent is the repository of jurisdiction to determine dispute emanating from nominations of candidates by parties for elections and that only prior to the declaration of results of the subject elections. It was submitted that the petitioner did file a complaint as dictated by the law but failed to prosecute it hence the same was dismissed for want of attendance.

On the basis of the submissions and the law cited, the two Respondents prayed to court that the petition be struck out with costs.

Petitioners’ submissions

10. Mr. Mogaka advocate for the petitioner did not file any written submissions but did file a list and bundle of authorities and offered oral submission. He explained to court that he was served by the Respondents written submissions a day before and on the date of hearing and was thus unable to file any written submissions.

11. Mr. Mogaka therefore offered oral submissions to the effect that the evidence availed by both the 2nd and 3rd Respondents in the affidavits of Isaiah Gichu Ndirangu, the chairman of the 2nd Respondent and that of Anthony Njomo Maina, show that the 3rd Respondent was a member of the 2nd Respondent as at the 26/4/2017 but did participate in the parties’ nominations conducted by jubilee party in violation and contrary to section 28 of the Political Parties Act. Mr. Mogaka pointed out to court that even though the 3rd Respondent has exhibited documents to show that he had resigned from the jubilee party on the 7/4/2017 to join the 2nd Respondent, the affidavits of ANANSTASIA KINAGU RIUNGU and PETER MAINA MACHARIA all demonstrated that the 3rd Respondent did participate as a candidate in the jubilee party nominations on 26/4/2017 at a time the 2nd Respondent says he had become its member. On that score Mr. Mogaka submitted that the court must protect and enforce adherence to the law. He placed reliance upon the decision of the Court of Appeal in Lydia Nyaguthi Githendu vs IEBC & 17 Others [2015] eKLR for the proposition that any illegality noted should not be condoned, perpetuated or allowed to pass. On the basis of such finding by the Court Of Appeal, Mr. Mogaka submitted that this court has jurisdiction to entertain the petition on account that an illegality by breach of section 28 of the Political Parties Act has been demonstrated.

12. On the accusation that the petitioner was denied the right to a fair hearing, the counsel submitted that the petitioner having filed a complaint with the political parties disputes tribunal, he was only called the night before to attend the hearing at 9am the next day without regard to the fact that he resides in Lamu and it would be impracticable for him to travel overnight and be heard the next day. For that reason, Mr. Mogaka submitted that his client’s rights under Article 50 of the constitution was breached with the effect that the process was then a nullity. He placed reliance upon the decision SILAS WAKE OTUKE VS AG & 3 OTHERS [2014] eKLR and ALICE WAHITO VS IEBC & AG [2013] eKLR for the proposition that where a court declines to afford a party a hearing the decision thereby reached cannot be sustained. He concluded by urging the court to exercise extreme caution before striking out the petition.

13. In their rejoinder both Mr. Weloba and Wetaba faulted Mr. Mogaka for having addressed the merits of his petition more than the objection as to jurisdiction and added that the petitioner had and still has a right to challenge the election of the 3rd Respondent appropriately but opted not to. Mr. Weloba concluded by telling the court that the election of the 3rd Respondent has been challenged before the proper forum and that to allow this petition to proceed would be to portend an embarrassment to the court.

Issues for determination

14. As framed and filed, the notices of preliminary objection seek this court to answer the all fundamental question whether or not it has jurisdiction to entertain the petition. That question is best answered by looking at the law the Respondents say divests this court of jurisdiction. The provisions have been isolated by the Respondents to be articles 88(4)e and section 75(1A) of the Elections Act.

15. I have had the benefit to read the materials availed to court by the Parties. While the 1st and 2nd Respondents contend that the proper forum is the magistrates court and the mode is an election petition, the petitioner take the petition that this is a constitutional petition by which he seeks declarations that the Respondents have in different would breached the constitution and the law.

16. I do not doubt that there is no prayer before me directly seeking to challenge the election of the 3rd Respondent during the general elections conducted on the 8/8/2017. What is challenged is however the process upon which the 3rd Respondent managed to participate in the those elections - the parties primaries. That alone points to this court that it is the foundation upon which the 3rd respondent emerged a candidate and appeared in the ballot papers resulting in election of the 3rd respondent. It is therefore the appreciation of this court that election is not a single event conducted on the single day identified as the election day rather it is a process that starts with the 1st Respondent herein setting out a calendar for the stakeholders like political parties to do their bit by nominating not only those to be elected by universal suffrage but even those to be deemed elected on account of being nominated by their political parties. If that be true then it follows that one cannot determine the petition without looking at the ultimate result at the tail end.

17. It may not be necessary to cite any decision on the proposition of the law that jurisdiction is everything and without foundation a court of law has nothing to do but down its tools by saying it has no jurisdiction.

18. In the context of the facts before me, the residents of BAHARI WARD, Lamu west constituency of Lamu County, did answer to their civic duty, some travelled long distances, and made a choice of who their member of county assembly would be. Those same people joined the Kenyans in the year 2010 and enacted for themselves the constitution embodying Article 87 and 88 and making a decision on how, in which forum and by whom they would want their political disputes regarding such of their decisions resolved. That must remain their sovereign will and that will is all compelling on and must be respected by all the institutions created under the constitution including this court.

19. The dispute as said before is whether or not the 3rd Respondent was validly nominated regard being had to what the petitioner calls breaches of the constitution and electoral laws. That to this court may as well be a very valid point to question everything that founded the election of the 3rd Respondent, but the challenge ought to be legally and properly mounted.

20. I have taken a chance to read and re-read the very forceful submissions by Mr. Mogaka grounded on the equally forceful decision of the Court of Appeal in Lydia Nyaguthi Githendu vs IEBC (supra). However as my hands and sight are not bound by only what the parties and counsel offer to the court, I have also had a chance to read subsequent decisions by the superior courts on the point and I have no iota of doubt that the law is clear that this court lacks jurisdiction, once election results for a member of a county election is declared save for jurisdiction to handle an appeal from the decision of the Resident Magistrate rendered pursuant to section 75 of the Elections Act.

21. In fact the decision in Lydia Nyaguthi Githendu was subjected to an Appeal to the Supreme Court in Moses Mwicigis & 4 Others vs IEBC & 5 Others[2016] eKLR and by its judgment dated the 28/4/2017 the Court of Appeal was reversed. In its judgment the Supreme court said:-

[100] “It is to be recalled that this Court, in Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others Sup. Ct. Petition No. 10 of 2014, as regards the moment of jurisdiction between IEBC and the Courts, had thus held (paragraph 65)

“The jurisdiction to handle disputes relating to the electoral process shifts from the Commissin to the Judiciaryupon the execution of the required mandate bythereturning officer. Once the returning officer makes a decision regarding the validity of a ballot or a vote, this decision becomes final, and only challengeable in anelection petition. The mandate of the returning officer, according to Regulation 83(3), terminates upon the return of names of the persons-elected tothe Commission. The issuance of the certificate in Form 38 to the persons-elected indicates thetermination of the returning officer’s mandate, thus shifting any issue as to validity, tothe election Court. Based on the principle of efficiency and expediency, therefore, the time within which a party can challenge the outcome of the election starts to runupon this final discharge of duty by the returning officer.”

[101] At what point in time does the Court become clothed with jurisdiction to determine disputes relating to the nominations of members of a County Assembly, by virtue of Article 177(2)(b) and (c) of the Constitution” Is it after the issuance of Gazette Notice by the IEBC , or at the close of elections when the nomination process begins”.

[109] The respondents had sought a declaration that the list of nominess for Nyandarua County Assembly published by the IEBC, had violated Articles 90, 98, 174 and 177 of the Constitution, as it purported to exclude Ndaragwa, O’l Kalau and O’Jororok Constituencies, indeed, one of the respondents’ contentions in the Court of Appeal was that the High Court erred by failing to consider the diversity of Nyandarua County, in the formulation of TNA’s party list. Is it conceivable that such a petition had nothing to do with elections, and was only concerned with constitutional questions” Not in our view: this was a petition contesting the nomination of the appellants a nomination which we hold to have been an integral part of the electoral process, in the terms of the Constitution and the electoral law.

[111] The foregoing Orders, it is to be noted, were the very ones sought by the 3rd respondent, in their memorandum of appeal to the Court of Appeal No. 224 of 2013 dated 28th August, 2013. These Orders had the effect of annulling the gazette, and who had taken the oath of office as the TNA-nominated members of Nyandarua County Assembly.”{emphasis provided}

22. By dint of the doctrine of stare decisis and enshrined in Article 163(7) of the constitution, I am bound, as any other court, save the Supreme Court itself, by that decision. Any cursory look at the prayers in this petition, no doubt reveal that a grant of any of the declarations sought would have the inevitable effect of invalidating the election of the 3rd Respondent. I must say, it is by law mandated and dictated that that be done by an election court for that election. This court is certainly not the court the law mandates in that regard.

23. While I appreciate the efficacy of a constitutional petition to remedy violation of rights under the law, I do as well appreciate that not all violations of every statutory provision must only be litigated by petition. That would be to declare a constitutional petition a panacea for all ills which it is not intended to be. To so declare would be to degrade the gravity for which a petition ought to be invited and thereby water down its importance. It would be synonymous with seeking to slaughter chicken using an axe or a gun to kill a mosquito. This is an election dispute that ought to be settled by the court and by the mode provided. It ought not be entertained here.

24. The upshot is that I decline to arrogate to myself the jurisdiction vested on the magistracy but accede to the Notices of Preliminary Objections which I consider merited. I allow the two Notices of Preliminary Objection by the 1st & 2nd Respondents with the consequence that the petition dated 16/8/2017 as amended on 20/8/2017 was filed in the wrong forum and is hereby struck out.

25. This, however, is not to say that the complaints are idle. Far from it. They may as well be justiciable in an appropriate forum when appropriate remedies are sought. A constitutional petition must not be confined to declarations only. I don’t consider that this striking out renders the petitioner totally remediless. He has counsel and is still entitled to advice by that counsel.

26. For the foregoing reasons, I strike out the petition but order that each party shall bear own costs.

Dated and delivered at Mombasathis8thday ofSeptember 2017.

P. J. O OTIENO

JUDGE

Delivered this 8thday of September 2017.

LADY JUSTICE M. THANDE

JUDGE