[2022] KEHC 16166 (KLR)

Misula v Independent Electoral and Boundaries Commission & 2 others (Election Petition E006 of 2022) [2022] KEHC 16166 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16166 (KLR)

Republic of Kenya

In the High Court at Siaya

Election Petition E006 of 2022

RE Aburili, J

December 7, 2022

Between

Jones Misula

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Mr. Juma, Gem Sub County Returning officer

2nd Respondent

David Obiero, Gem Sub County Assistant Returning Officer

3rd Respondent

Ruling

1. The petitioner Jones Misula Okoth has moved this court by way of an election petition seeking an order to compel the IEBC returning officer for Gem sub county, South Gem ward, the 2nd respondent herein together with the 1st and 3rd respondents to accept the petitioner’s nomination papers and add his name to the list of candidates vying for the South Gem ward Member of County Assembly of Siaya position, whose election will be carried out on the December 8, 2022. The petition is supported by the grounds on the face of it and the supporting affidavit sworn by himself.

2. The petitioner is acting prose and this court heard him online just yesterday evening after he had filed his petition and application under certificate of urgency. The court certified the application as urgent and proceeded to hear him orally.

3. From the onset, the petitioners’ case poses a jurisdictional question in as to whether an election court can hear and determine a pre-election nomination dispute.

4. In The of Matter of The Interim Independent Electoral Commission [2011] eKLR, the Supreme Court citing with approval the Court of Appeal finding in the case of Owners of Motor Vessel ‘Lillian S” v Caltex Oil (Kenya) Limited[1989] KLR 1 said that jurisdiction flows from the law either through the Constitution or through statute and that a court of law cannot donate jurisdiction to itself through interpretation, where wordings of the legislation is clear and there is no ambiguity

5. In Republic v The Independent Electoral and Boundaries CommissionexparteCharles Ondari Chebet (Nakuru High Court Judicial Review Application No 3 of 2013), it was held that:“where there is clear constitutional and statutory provision for resolution of disputes including qualification and nomination disputes this court's jurisdiction is precluded. This court's jurisdiction would only arise after the due exercise by the mandated bodies, the returning officer and the commission of their statutory mandate.”

6. Both article 88(4)(e) of the Constitution and section 74(1) of the Elections Act are clear and without ambiguity that the IEBC is tasked exclusively with responsibility to entertain disputes arising from nominations. Both article 88(4)(e) of the Constitution and section 74(1) of the Elections Act provide that:“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” are the responsibility of the Commission”’

7. In both Republic v The National Alliance Party of Kenya and Anotherex-parteDr Billy Elias Nyonge [2012] eKLR and Diana Kethi Kilonzo and Another v IEBC and Others [2013] eKLR the High Court discussed the meaning to be attached to article 88 (4) (e) and section 74 (1) of the Elections Act and concluded that it is only the IEBC that has exclusive mandate to resolve any dispute relating to the electoral nomination exercise; that it is only after that IEBC mechanism has been exhausted that a party may go to the High Court to challenge the process; and such challenge would be through invoking the supervisory jurisdiction of the court under article 165(6) of the Constitution.

8. In John Harun Mwau & 2 others v IEBC & 2 others, Consolidated Petitions No 2 & 4 of 2017, the Supreme Court observed at paragraph 231 of its judgment that nomination process is deeply rooted in the Constitution, which recognizes that an electoral contest must be preceded by the nomination of candidates to vie for elective positions.

9. In his petition herein, the petitioner alleges that following the refusal by the returning officer to accept his nomination papers on account that the forthcoming election is a suspended election and not a by-election, he filed an appeal before the IEBC which matter he said he had not received any response. The petitioner did not present anything before this court as proof of the alleged appeal filed before the IEBC. It is a well settled rule of evidence that he who alleges must prove the said allegation.

10. From the evidence presented before this court, it is not clear whether the commission’s dispute resolution committee was seized with the petitioner’s claim that he had been barred by the returning officer from presenting his nomination papers and if so what decision the said committee rendered.

11. A court sitting as an election court to hear an election petition is mandated to only hear and determine electoral disputes arising from the elections and results declared and not the pre-election nomination disputes. This is because the jurisdiction to entertain nomination matters is vested in the IEBC disputes resolution committee and the political parties disputes tribunal. In the case of Francis Gitau Parsimei & 2 Others v National Alliance Party & 4 Others [2012] eKLR Majanja, J Observed thus:“It is also my view that article 88(4)(e) and section 74(1) of the Elections Act, 2011 provide for alternative modes of dispute resolution specific to the nomination process. This court cannot entertain nomination disputes where such a process has not been invoked or it has been demonstrated that the process has failed.”

12. It follows that if this court hears and determines this petition on its merit, it will be usurping powers of the IEBCand that act will be contrary to institutional independence provided and enjoyed by IEBC by virtue of article 249 of the Constitution.

13. Accordingly, I find and hold that this court lacks jurisdiction to hear and determine this petition.

14. The application and the petition are hereby declined and struck out with no orders as to costs.

15. File closed. I so order

DATED, SIGNED AND DELIVERED AT SIAYA THIS 7TH DAY OF DECEMBER, 2022R.E. ABURILIJUDGE