[2017] KEHC 2046 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

ELECTION PETITION NO 1 OF 2017

IN THE MATTER OF THE ELECTION ACT, NO. 24 OF 2011 LAWS OF KENYA

AND THE ELECTIONS (GENERAL) REGULATIONS, 2012 AND ELECTIONS

(PARLIAMENTARY AND COUNTY ELECTION ) PETITION RULES, 2017

AND

IN THE MATTERS OF THE GUBERNATORIAL ELECTIONS TANA TIVER

COUNTY, COUNTY NO 4, HELD ON 8 AUGUST, 2017)

BETWEEN

MOHAMED DADO HATU…………………………………………………….PETITIONER

VERSUS

DHADHO GADDAE GODHANA…………….………………………….1ST RESPONDENT

THE RETURNING OFFICER, TANA RIVER COUNTY………………...…2ND RESPONDENT

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION………………………........………..3RD RESPONDENT

AND

COMMISSION FOR UNIVERSITY EDUCATION……………………....INTERESTED PARTY

RULING ONE

1. Garsen Election petition No. 1 and Garsen Election petition No. 2 were consolidated by order of this court dated 3/11/2017 under Rule 17 of the ELECTION (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017 which states as follows;

17. Consolidation of petition

“Where more than one petition is lodged relating to the same election, the election court shall consolidate the petition, and hear and determine them together”.

2. The Application which has come for consideration in this ruling is the 1st Respondent’s Application dated 9/10/2017 filed Garsen Election Petition No.1 prior to the order of consolidation.

3. The said Application seeks the following orders;

(i)THATthe Petition herein dated 4th September, 2017 and Verifying Affidavit sworn by Mohamed Dado Hatu on a similar date be struck out;

(ii)THATthe paragraphs 7,9, 10, 12, 13 & 14 of the Petition dated 4th September, 2017 be struck out;

(iii)THATgrounds of the Petition paragraph 15(a-d) be struck out;

(iv)THATthe paragraphs 16 &17 of the Petition dated 4th September, 2017 bestruck out;

(v)THATorders sought under paragraphs (a) -(d) of the Petition dated 4th September, 2017 be struck out;

(vi)THATparagraphs 5, 7,8 &9 of the Verifying Affidavit sworn by Mohamed Dado Hatu be struck out;

(vii)THATparagraphs 10 (a-d) of the Verifying Affidavit sworn by Mohamed Dado Hatu on 4th September, 2017 be struck out;

(viii)THATparagraphs 11, 12&13of the Verifying Affidavit sworn by Mohamed Dado Hatu be struck out;

(ix)THATcosts be provided for.

4. The Application is based on the following grounds;

(i)That the Petitioner has filed the instant Petition majorly contesting the 1st Respondent's election as Governor, Tana River Count)' because of the reason he feels that the governor has not attained the minimum educational qualifications as required Constitution, the Elections Act and the Elections (General) Regulation, 2012.

(ii) That the Elections Act at section 22 (2) provides for qualifications of nominated candidates and to be specific it provides that person may be nominated as a candidate for election as county Governor or deputy county Governor only if the person is a holder of a degree from a university recognized in Kenya. Regulation 47 of the Elections (General) Regulations, 2012 requires that if one studies outside the country, they seek authentication of that body with the Kenya National Examinations Council, in the case of form four certificates, or the Commission for University Education, in the case of university degrees.

(iii)The 1st Respondent having accomplished the educational requirements was duly nominated by the Orange Democratic Party (ODM) as their Gubernatorial candidate for Tana River County.

(iv)The 1st Respondent having been duly nominated presented his nomination papers to the 3rd Respondent and received by the 2nd Respondent and upon confirmation that I had met all the requirements, the 1st Respondent was cleared to vie for the position of the Governor, Tana River County.

(v)As required under Regulation 47 of the Elections (General) Regulations, 2012, I sought authentication of my Bachelor's Degree on the 24th May, 2017 as I had studied Bachelor of Arts in Development Studies from KIMMAGE DEVELOPMENT STUDIES CENTRE in Ireland.

(vi)The Interested Party has actually confirmed this position severally and a letter specifically written to the Petitioner on the 25th April, 2017 informing that indeed the institution is recognized in Kenya and that the 1st Respondent's degree is recognized in Kenya.

(vii)In fact on this issue alone, the Petitioner and others filed a plethora of cases to stop the 1st Respondent from vying for the Gubernatorial post, they include the following:

a) Petition No. 152 of 2017 Mohamed Dado Hatu vs Dhado Gaddae Godana and 2 Others

b) Petition No. 188 of 2017 Adam Barisa Dhidha vs Dhado Gaddae Godana and 2 Others

c) Petition No. 345 of 2017 Adam Barisa Dhidha & Others vs Dhado Gaddae Godana and 2 Others

(viii)The 1st Respondent therefore believes the Petition dated 4th September, 2017 is res judicatato the matters listed above as this issue has already been dealt with courts of competent jurisdiction.

(ix)Therefore the Petition dated 4th September, 2017 should be struck out and the Petitioner order to pay costs in this suit.

5. The application was supported by the affidavit of the 1st Respondent in which he deposed as follows;

(i)THATI have read and had my Advocates on record Mr. Benard Chenge of Ms. CFL Advocates (hereinafter (my Advocates')explain to me, and I therefore understand, the true tenor, effect and purport of the Notice of Motion Application filed herewith and I make this Affidavit in support thereof.

(ii)THATmy Advocates advised me, which advice I verily believe to be correct, that the law governing county governor elections in Kenya is found in the Constitution of Kenya, 2010; Elections Act, 2011 and the Election (General) Regulations, 2012.

(iii)THATprior to the General Elections of 8th August, 2017, (ODM) Orange Democratic Party conducted its primaries /nominations and I was duly nominated as the candidate to vie for the gubernatorial position in Tana River County;

(iv)THATafter nomination I proceeded to present my nomination papers to the 3rd Respondent and upon confirming I had complied with Section 22 of the Elections Act, 2011 and regulations I was cleared by the 3rd Respondent to vie for the Gubernatorial post Tana River;

(v)THATbeing a graduate of a University Kimmage Development Studies Centre one of the requirements from the 3rd Respondent and Rule 47 of the Elections (General) Regulations, 2012 was that I confirm that indeed my degree was consummate with the levels of education in Kenya.

(vi)THATI wrote two letters one dated 26th September, 2016 and 24th May, 2017 to which I got positive responses to on the 24,h May, 2017 from the Interested Party, who indicated that my degree is recognized in Kenya; Annexed and marked "GDG 1" are copies of my letters dated 2Jd September, 2016and'24th May, 2017 and response thereto.

(vi)THAT this is not the first time the issue of my educational credentials is before this Court for determination. The following were before the High Court on the issue of my Bachelor's degree:

a. Petition No. 152 of 2017 Mohamed Dado Hatu vs Dhado Gaddae Godana and 2Others

b. Petition _No. 188 of 2017 Adam Barisa Dhidha vs Dhado Gaddae Godana and 2Others

c. Petition No. 345 of 2017 Adam Barisa Dhidha & Others vs Dhado Gaddae Godana and 2 Others

(vii)THATI am advised by my Advocates which advice I verily believe to be true that in the view of the above cases the instant Petition is Res judicataand should be struck out;

(viii)THATthere is even a decision from Justice Olga Sewe delivered on the 2nd August, 2017 dealing with the instant issues herein and the Application was still dismissed for being Res judicata.

(ix)THAT Iam advised by my Advocates which advice I verily believe to be true that the law is clear that the court must be vigilant to guard litigants evading the doctrine of res judicataby parties alleging to be introducing new causes of action so as to seek the same remedy before the court. The Petitioner in this case has come in disguise of an Election Petition but still the issue in contention is the academic credentials of the 1st Respondent;

(x)THATI am therefore the duly elected Governor of Tana River County, duly elected in compliance with the law;

(xi)THATI am advised by my advocates on record, which advice I verily believe to be true, that having already been gazetted as the Governor of Tana River County, the urgency of the matter, as contemplated by the Petitioner under the Petition dated 4th September, 2017, has since been overtaken by events.

(xii)THATtherefore this matter of my academic credentials being previous before a competent court of law the Petition dated 4th September, 2017 be struck out with costs;

(xiii)THATit is therefore in the interest of fairness and justice that the Application filed herewith should be allowed as prayed.

SUBMISSIONS IN THE APPLICATION DATED 9/10/2017

6. The Applicant in the Application dated 9/10/2017 submitted as follows;

(i) That the Application dated 9/10/2017 seeks to strike out Garsen Petition No. 1 of 2017 on the grounds that the said petition is res judicata

(ii) Prior to the General Elections of 8th August, 2017, the 1st Respondent who was vying for a gubernatorial position being a graduate of Kimmage Development Studies Centre, Ireland had to seek clearance from the Commission for University Education by way of authentication of his Degree Certificate.

(iii) Indeed on the 24th May, 2017 the 1st Respondent duly sought clearance from the Commission for University Education for authentication of his Degree Certificate and recognition of Kimmage Development Studies Centre, Ireland.

(iv) The Commission for University Education indeed confirmed on the 24th May, 2017 that the 1st Respondent's Degree is recognized in Ireland and by convention in Kenya.

Indeed, separately on the 25th April, 2017 the Commission for University Education wrote to the Petitioner and indicated that the 1st Respondent Degree Certificate was recognized in Kenya.

It is noteworthy to state that the Petitioner in this matter does not dispute this facts and this averment remains uncontroverted.

The petitioner does not dispute that a confirmation has been made to him that the 1st Respondent's Degree Certificate is recognized in Kenya.

(v) Meanwhile, earlier on the 11th April, 2017 the Petitioner herein (MOHAMED DADO HATU)filed a Petition in the High Court of Kenya at Nairobi, being PETITION NO. 152 OF 2017 MOHAMED DADO HATU -VS- DHADO GADDAE GODANA AND 2 OTHERS,wherein the Petitioner inter alia sought for orders barring the 1st Respondent from presenting his Bachelor of Arts in Development Studies certificate awarded by Kimmage Development Studies Center, in consideration for nomination as a gubernatorial candidate in its party primary elections 2017, Tana River County.

That the Honourable Justice Chacha Mwita in applying his judicial mind to the Petition determined and found that the issue relating to the academic qualification of the 1st Respondent was the duty of the 3rd Respondent and the Petitioner's Party. Upon the aforesaid ruling the Petitioner duly wrote to the Interested Party's and received their response on the 25th April, 2017 affirming that the 1st Respondent's Degree Certificate is recognized in Kenya.The Petitioner did not file a complaint to the 3rd Respondent or the 1st Respondent's party (Orange Democratic Party).

(vi) On 8th May, 2017, one Adam Barisa Dhidha, an associate of the Petitioner filed another Petition being; Petition No. 188 of 2017 Adam Barisa Dhidha -vs- Dhado Gaddae Godana and 2 Otherschallenging the nomination of the 1SI Respondent by his party, wherein on 9th May, 2017 the Hon. Justice Mativo dismissing the Petition, indicated that the issues of the 1st Respondent's qualifications was upon the Interested Party, the 1st Respondent's political party and the 3rd Respondent'sto determine. No appeal has been filed against that decision.

(vii) Further, on 13th July, 2017 the Petitioner herein in concert with 4 other Petitioners, in particular Adam Barisa Dhidha, instituted Petition No. 345 of 2017 Adam Barisa Dhidha & 4 Others vs. Dhado Gaddae Godana and 2 Others,wherein they sought to challenge the candidature of the 1st Respondent for the gubernatorial position of Tana River County citing that he did not have the requisite academic qualifications.

(viii) On the 2nd August, 2017 the Hon. Justice Olga Sewe struck out the Petition and found that the instant Petition was res judicata having been based on the same issues raised in Nairobi High Court Petition Nos. 152 of 2017and Petition Nos. 188 of 2017which had been heard and determined. No appeal has been filed against this decision.

(ix) The Petitioner has now filed this Election Petition raising similar issues as in Petition Nos. 152 of 2017, Petition No. 188 of 2017 and, Petition No. 345 of 2017 to witthat the 1st Respondent was not validly elected as Governor of Tana River County on 8th August, 2017 for reason of the 1st Respondent's did not possess the academic qualifications outlined in Section 22 of the Elections Act, 2011.

(x) That the issues for determination is whether the petitioner’s petition should be struck out for being res judicata and who should bear the costs of these proceedings.

As submitted herein above the Petitioner in PETITION NO. 152 OF 2017 MOHAMEDDADO HATU -VS- DHADO GADDAE GODANA AND 2 OTHERS,and the Petitioner in Petition No. 188 of 2017 Adam Barisa Dhidha -vs- Dhado Gaddae Godana and 2 Othersraised the issue of the 1st Respondent academic qualifications to vie for the gubernatorial position in Tana River County.

(xi) On the 2nd August, 2017 Justice Olga Sewe whilst determining Petition No. 345 of 2017 Adam Barisa Dhidha & 4 Others vs. Dhado Gaddae Godana and 2 Othersfound that the issues pertaining to the 1st Respondents academic qualifications had already been fully heard and determined,the Judge stated at Page 8 paragraph 12 (See Page 58) that-

"there does not seem to be any controversy that in both matters, the respective courts finally pronounced themselves on different dates that the question of the 3rd Respondent's Academic qualifications was a matter that ought to have been taken up through the 2nd Respondents internal dispute resolution mechanism; and thereafter the Political Parties Disputes Tribunal if necessary. Accordingly the instant application and petition upon which it is founded are indeed res - judicata.

Indeed, in AFRICA OIL TURKANA LIMITED (PREVIOUSLY KNOWN AS TURKANA DRILLING CONSORTIUM LTD) & 3 OTHERS V PERMANENT SECRETARY, MINISTRY OF ENERGY & 17 OTHERS [2016] eKLR,The Court of Appela found that:_

"the doctrine of res- judicatahas a long history and is founded that a judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive, as between the same parties upon the same matter, directly in question in another court. There is also the principle that the judgment of a court of exclusive jurisdiction, directly on the point, is in like manner, conclusive upon the same matter, between different parties coming incidentally in question in another court, for a different purpose. The Supreme Court of England in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2014] 1AC 160; [2013] 4 All E R 715referred to res judicata as "a portmanteau term.. .used to describe a number of different legal principles with different juridical origin". The court in that case identified at least five different legal principles underlying the doctrine of res judicata.

7. The Application was supported by professor Ojienda who adopted the above stated submissions and added ass follows;

(i) From paragraph 15 of the petition which states the grounds upon which the petition is based, it is apparent that the single ground is this petition is the academic qualification of the 1st Respondent.

(ii) That the court should strike put paragraphs 3, 7, 9, 10, 12 and 13 of the petition together with paragraph 5, 7, 8, 9, 10, 11, 12 and 13 of the verifying Affidavit on the basis that the petitioner cannot purport to swear the verifying Affidavit based on a certificate he did not issue and neither was the said certificate issued to him.

(iii) That the copy of the degree document and letter by one Gilbert Opanga are annexed without Affidavits by the makers and the same cannot constitute evidence before this court as Rule 12 of the ELECTION ( PARLIAMENTARY AND COUNTY ELECTIONS) PETITIONS RULES 2017 provide that each person whom the petitioner intends to call as a witness at the hearing shall swear an affidavit.

(iv) It was further submitted that the petitioner did not file any Replying affidavit to challenge the factual issues raised in the affidavit in support of the Application dated 9/10/2017 and that the petitioner only filed grounds of opposition.

8. The 2nd and 3rd Respondents also submitted in writing as follows:

(i) That it is the 2nd and 3rd Respondents' case that the issues being raised in the present Petition have been heard and determined by a Court of competent jurisdiction.

(ii) That the same have been determined with finality on the merits in the case of ADAM BARISA DHIDHA AND OTHERS VS THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND OTHERS, JUDICIAL REVIEW APPLICATION NO. 345 OF 2017.

(iii) That in the above said case, the Applicants therein had challenged the 2nd and 3rd Respondents' decision to nominate the 1st Respondent herein as a candidate to vie for the position of Governor for the Tana River Gubernatorial elections. Among the grounds adduced in the aforesaid proceedings were issues pertaining to the 1st Respondents academic qualifications and suitability to participate in the elections as a candidate for the Gubernatorial position. While dismissing the Application before the High Court, the Learned Judge rendered the position thus:

[12] Thus, having perused the Petition and its supporting documents, as well as the application filed herewith, there can be no dispute that the same issues raised in the instant Petition are the very issues that were raised in Nairobi High Court Petitions Nos. 152 of 2017 whose proceedings were attached to the Notice of Preliminary Objection. I have further called for and perused the two Court files for High Court Petition No. 152 of 2017 and High Court Petition No. 188 of 2017, and confirmed that the issues are the same. There does not seem to be any controversy that in both matters, the respective Courts finally pronounced themselves on different dates that the question of the 3rd Respondent's academic qualifications was a matter that ought to have been taken up through the 2nd Respondent's Internal dispute resolution mechanism; and thereafter the Political Parties Dispute Tribunal if necessary. Accordingly the instant application and the Petition upon which it is founded are indeed res judicata."

(iv That it is thus apparent that the Learned Judge reckoned that the issues of academic qualifications and the 1st Respondent's qualifications or otherwise to contest had been litigated upon and a final determination rendered upon the same.

(v) That it is trite law that a Court cannot sit to reopen issues that have been heard and determined with finality by a Court of competent jurisdiction. This position has been affirmed under Section 7of the Civil Procedure Actof Kenya which is to the effect that:

"No court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."

The Court in the case of OKIYA OMTATAH OKOITI V COMMUNICATIONS AUTHORITY OF KENYA & 14 OTHERS, PETITION NO.59 OF 2015,reiterated the rationale and underlying principles for res judicata to apply in the following terms;

[17] For res judicata to be invoked in a civil matter therefore, the issue in a current suit must have been previously decided by a competent Court. Secondly, the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in a subsequent suit where the doctrine is pleaded as a bar. Thirdly, the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title. (See the case of Karia and Another vs the Attorney General and Others (2005) 1EA 83).

[18] The rationale behind the provisions of Section 7 above entrenching the doctrine of resjudicata is that if the controversy in issue is finally settled, determined or decided by a competent Court, it cannot be re-opened. The doctrine is therefore based on two principles; that there must be an end to litigation and that a party should not be vexed twice over the same cause. This was what was held with approval in Omondi vs National Bank of Kenya Ltd and Others (2001) EA 177.

(vi) That the doctrine of res judicatais aimed at barring frivolous suits and vexatious and stale claims as espoused under Section 7of the Civil Procedure Act.The doctrine of res judicatahas as well been upheld to bar parties from litigating in bits and running from one forum to another litigating and seeking the same remedy while giving their disputes a cosmetic uplift. This position was acknowledged by the Court in the case of HENRY WANYAMA KHAEMBA vs STANDARD CHARTERED BANK OF KENYA LIMITED, CIVIL CASE 560 OF 2006,where it was stated thus;

The doctrine of res fudicata prohibits parties by suing in bits and pieces or giving a subsequent case a legal face lift bu removing parties who are part of the earlier dispute and/or case filed and determined.,. "I accept the submissions bu counselfor the defendants that the doctrine of res judicata would apply not only to situations where a specific matter between the same persons litigating in the same capacity has previously been determined by a court of competent jurisdiction but also to situations where either matters which could have been brought in were not brought in or parties who could have been enjoined were not enjoined. Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. They are bound to bring all their case at once. They are forbidden from litigating in installments". (Emphasis added)

(vii) As correctly pointed out by the Learned Judge, the doctrine of res judicataas well acts as an issue estoppel. The rationale for issue estoppel was affirmed by the Court of Appeal in the case of TRADE BANK LIMITED VERSUS L.Z. ENGINEERING CONSTRUCTION LIMITED [2000] IRA 266wherein the Court of Appeal held inter alia that:-

"Issue estoppel bars a person from re-litigating matters already ruled on by the Court. It only arises regarding determination of fact. Regarding determination of law, the quality of the decision will be a relevant factor in determining whether or not to follow that decision."

(viii) In the case ofZURICH INSURANCE COMPANY PLC VS COLIN RICHARD [2011] EWCA CIV 641,as was cited with approval in MERCY MUNEE KINGOO & ANOTHER VS SAFARICOM LIMITED & ANOTHER, MALINDI CONSTITUTIONAL PETITON NO. 5 OF 2016, the court explained the principal of res judicata and estoppel in the following terms: -

"Estoppel by res judicata, or estoppel by record, is a manifestation of the principle that judicial decisions once made must be accepted as final and are not open to challenge. Ultimately, it rests on a rule of policy that it is in the public interest for there to be finality in litigation, but it also sustains an important principle that decisions of competent tribunals must be accepted asproviding a stable basis for future conduct.The Latin word "res judicata" mean simply "a thing judicially determined." They mail apply to the claim as a whole (usually referred to as "cause of action estoppel"), or may refer to one or more specific issues which the court was required to decide in the course of reaching its decision on the matter before it (what is generally referred to as "issue estoppel" .... The fact that an order is made by consent does not in my view prevent it from giving rise to an estoppel by record, provided that the nature of the order is such that it would otherwise have that effect."

(ix) Issue estoppel as taken together with res judicata are to the effect that once an issue has been judicially determined by a competent court, the same cannot again form the basis of fresh litigation and furthermore parties must avoid litigating in instalments and must raise all issues in one litigation. The foregoing position was as well echoed by the Court in in NORTH WEST WATER LTD V BINNIE & PARTNERS [1990]3 ALL E.R.547,where Lord Drake, J at 556,as cited with approval in ANTHONY RAYMOND CORDEIRO 8b 2 OTHERS V ADRIAN NOEL CARVALHO & 5 OTHERS, CIVIL SUIT NO. 627 OF 2012 held thus;

"WHERE AN ISSUE HAD BEEN DECIDED IN A COURT OF COMPETENT JURISDICTION. THE COURT WOULD NOT ALLOW THAT ISSUE TO BE RAISED IN A SEPARATE PROCEEDING BETWEEN THE DIFFERENT PARTIES ARISING OUT OF IDENTICAL FACTS AND DEPENDANT ON THE SAME EVIDENCE SINCE. NOT ONLY WAS THE PARTY SEEKING TO RE-LITIGATE THE ISSUE PREVENTED FROM DOING SO. BY VIRTUE OF ISSUE ESTOPPEL BUT IT WOULD ALSO BE AN ABUSE OF PROCESS TO ALL. FOR THE ISSUE TO BE RE-LITIGATED."

(x) The law is thus clear on the principle of res judicata.Parties cannot litigate in instalments and cannot give their cases a cosmetic uplift by having new parties reopening issues that have already been heard and determined by Courts of competent jurisdiction. It is the 2nd and 3rd Respondents' submission that res judicatais a complete estoppel against any suit that runs afoul of it, and there is no way of going around it as it asserts a jurisdictional bar and injunct upon a Court or a body exercising a quasi-judicial role from entertaining such a suit. The doctrine aims at bringing litigation to an end and affords parties closure and respite from the spectre of being vexed by issues and suits which have already been determined by a competent court. As it was correctly noted by the Honourable Court in INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION VS MAINA KIAI AND OTHERS, CIVIL APPEAL NO. 105 OF 2017.

"THE DOCTRINE OF RES JUDICATA IS DESIGNED AS A PRAGMATIC AND COMMON-SENSICAL PROTECTION AGAINST WASTAGE OF TIME AND RESOURCES IN AN ENDLESS ROUND OF LITIGATION AT THE BEHEST OF INTERPID PLEADERS HOPING, BY A MULTIPLICITY OF SUITS AND FORA9 TO OBTAIN AT LAST, OUTCOMES FAVOURABLE TO THEMSELVES. WITHOOUT IT, THERE WOULD BE NO END TO LITIGATION, AND THE JUDICIAL PROCESS WOULD BE RENDERED ANOISOME NUISANCE AND BROUGHT TO DISREPUTE AND CALUMNY. THE FOUNDATIONS OF RES JUDICATA THUS REST IN THE PUBLIC INTERST FOR SWIFT, SURE AND CERTAIN JUSTICE.

(xi) By re-opening issues that had already been heard and determined, the present Petitioner in his Petition is merely subjecting the 1st Respondent to double jeopardy and condemning him which action amounts to an infringement of his right to access justice as guaranteed under Article 48 ofthe Constitution;the right to equal protection of the law as guaranteed under Article 27 (1)of the Constitution;and the right to a fair hearing as guaranteed under Article 50of the Constitution.

(xii) It is the 2nd and 3rd Respondents' other submission that the grounds upon which the present Petition is founded cannot form the basis of an election dispute as the issues raised are of pre-electoral disputes at the nomination phase.

(xiii) It is the 2nd and 3rd Respondent's submissions that the petition is defective, incompetent and bad in law as the petitioner has failed to adduce the results of the election he is seeking to challenge neither has he adduced the statutory instrument used to declare the results as required by the Election Laws and Regulations.

(xiv) That the Petitioner has failed to comply with the law regarding the service of petition to all the parties within the stipulated period of 28 days as per the Election Laws and Regulations.

(xv) It is the submission of the 2nd and 3rd Respondent that the petitioner herein failed to comply with the law relating to deposit of security i.e. Section 78 of the Election Act and Regulations 13 require that the deposit for security for costs be made within 10 days . The provision is coached in mandatory and failure to comply with it, this court has power to strike out the petition. The record indicates that the petitioner did not comply with the law and we invite the court to strike out the petition on those grounds also.

(xvi) It is further the 2nd and 3rd Respondents' submission that the Interested Party herein was wrongly enjoined these proceedings as there was no basis of including then and no justification whatsoever has been given.

9. Opposing the Application, the petitioner’s counsel filed the following grounds of opposition:

(i) That the Application dated 9/10/2017 is incompetent and has no merits

(ii) That the issues raised in the petition before court have not been substantively determined by court of law and therefore the instant petition is not res judicata.

(iii) That no determination by competent court of law has ever been made as to whether the 1st respondent was or is qualified academically to be a governor of Tana River County.

10. The petitioner’s counsel further submitted orally in court as follows;

(v) That the issue as to the validity of the degree by the 1st Respondent was never determined.

(vi) That the three cases cited by the Respondents did not make a determination as to whether the 1st Respondent was qualified academically and the said has never been settled.

(vii) That the petitioner in this petition was never a party to the said cases. Further that the reason for dismissal of petition No. 188 of 2017 was that it was IEBC which had the jurisdiction to determine the issue of academic qualification of candidates.

(viii) It was further submitted that now that elections have been conducted, it was the election court which has the jurisdiction to determine the issue of qualification of the 1st Respondent.

11. I have carefully considered the rival submission in the application dated 9/10/2017. The Respondents on the one hand submitted that Garsen Petition No. 1 of 2017 is res judicata and the same should be struck out with costs.The petitioner on the other hand submitted that the issue of academic qualification of the 1st respondent has never been determined and therefore the petition is not res judicata and that the only court with jurisdiction to hear and determine the issue after the general election is the election court

12. My findings are as follows;

(i) I find that the issues for determination in this ruling are as follows:-

(a) Whether this petition is res judicata

(b) Whether consequently, this court is seized of the jurisdiction to hear this petition.

(c) Who pays the costs of this Application?

(ii) On the issue as to whether this case is res judicata,Section7the civil procedure Actprovides as follows:-

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

(iii)The Civil Procedure Act also provides explanations with respect to the application of the res judicatarule. Explanations 1-3 are in the following terms:

‘’Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.

Explanation.(2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.

Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.’’

(iv)I have perused the decisions from the High Court in the following cases;

(a)Petition No. 152 of 2017 Mohamed Dado Hatu vs Dhado Gaddae Godana and 2Others

(b)Petition _No. 188 of 2017 Adam Barisa Dhidha vs Dhado Gaddae Godana and 2Others

(c)Petition No. 345 of 2017 Adam Barisa Dhidha & Others vs Dhado Gaddae Godana and 2 Others

(v) I find that the issue of the academic qualifications of the 1st respondent was never resolved. What the Courts said in the above cases was that the matter ought to have been taken up through IEBC internal dispute resolution mechanism and thereafter to the Political Parties Disputes Tribunal if necessary.The latest of the rulings was deliveredon the 2nd August, 2017 a few days before the General Elections by Justice Olga Sewe in Petition No. 345 of 2017 Adam Barisa Dhidha & 4 Others vs. Dhado Gaddae Godana and 2 Others and she stated at Page 8 paragraph 12 (See Page 58) that-

"there does not seem to be any controversy that in both matters, the respective courts finally pronounced themselves on different dates that the question of the 3rd Respondent's Academic qualifications was a matter that ought to have been taken up through the 2nd Respondents internal dispute resolution mechanism; and thereafter the Political Parties Disputes Tribunal if necessary. Accordingly the instant application and petition upon which it is founded are indeed res - judicata.(Emphasis mine)

(vi) I also rely on the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR where the court stated as follows;

“The doctrine of res judicata has two main dimensions: cause of action res judicataand issue res judicata. Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.”

(vii) I find that in the current case, the issue of the academic qualifications of the 1st Respondent was not determined as the court told the parties that the High court was not the right forum for such determination. I find that after the General Elections, any consequential dispute on the election shifts to the election court.

(viii)I find that it is true that there was no appeal against the three decisions cited above. However, the said decisions did not determine whether or not the 1st Respondent was qualified to vie for the Gubernatorial seat.

(ix )I accordingly find that this court has the jurisdiction to hear and determine this petition. The issues raised in the petition cannot be determined at interlocutory stage as this court has to hear the parties before making a final determination.

(x)The Application dated 9/10/2017 is accordingly dismissed. On the issue of the costs of the said Application, I rule that the costs to abide the cause.

Delivered and signed at Malindi this 1st December, 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE.