[2022] KEHC 3198 (KLR)

Mugandi & 3 others v Katana & 9 others (Constitutional Petition 5B & 6B of 2022 (Consolidated)) [2022] KEHC 3198 (KLR) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3198 (KLR)

Republic of Kenya

In the High Court at Malindi

Constitutional Petition 5B & 6B of 2022 (Consolidated)

SM Githinji, J

July 15, 2022

IN THE MATTER OF: ARTICLES 1, 2, 19, 20, 21, 22, 23, 33, 38, 47, 48, 50, 73, 75, 79, 88, 165, 180, 193 & 258 OF THE CONSTITUTION OF KENYA, 2020 AND IN THE MATTER OF: SECTION 22 & 25 OF THE ELECTIONS ACT NO. 24 OF 2011 AND IN THE MATTER OF: NOMINATION OF AISHA JUMWA TO CONTEST FOR THE SEAT OF GOVERNOR KILIFI COUNTY

Between

Karl Katingu Mugandi

1st Petitioner

Concern Citizen Kenya

2nd Petitioner

Daniel Chengo Kahindi

3rd Petitioner

Rajab Menza Shikara

4th Petitioner

and

HON. Aisha Jumwa Karisa Katana

1st Respondent

The Independent Electoral & Boudaries Commission

2nd Respondent

Commission of Higher Education

3rd Respondent

Ethics And Anti-corruption Commission

4th Respondent

The Kenya National Qualification Authority

5th Respondent

Director Fo Criminal Investigations

6th Respondent

Head of Public Service

7th Respondent

Jomo Kenyatta University Of Agriculture AndTechnology (JKUAT)

8th Respondent

Kenya National Examination Council

9th Respondent

International Leadership University

10th Respondent

Ruling

1. In this matter, the petitions were filed, one dated 21st June, 2022 and the other 22nd June, 2022 challenging the nomination and or gazettement of the 1st Respondent as a gubernatorial candidate for Kilifi County under the United Democratic Alliance in the general elections to be held on 9th August, 2022.

2. The main and common ground on which the petitions are grounded is that the 1st Respondent does not meet the legal qualifications to vie for a gubernatorial position as she is not possessed of a university degree certificate from a university recognized in Kenya.

3. To both the petitions, preliminary objections were raised on the ground that this court is in want of jurisdiction to entertain the petitions.

4. Given the similarities in both petitions and the applications, the files were consolidated in Petition No. 5B of 2022. The court also gave directions that the application be heard by way of written submissions.

5. The Applicant filed her submissions on 14th July, 2022 through her advocate, Mr. Musyoki Mogaka. On issue of the importance of jurisdiction, he invited the court to consider the holding in the case Samuel Kamau Macharia & another v Kenya commercial Bank Limited and 2 others[2012] eKLR where the court observed that:“A court jurisdiction flows from either the constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by the law.”To buttress the finding, the case of Lemeita Ole Lemein v Attorney General and 2 others [2020] eKLR was also leaned on.

6. Further to the foregoing, the Applicant reckoned that Article 88(4)(e) of the Elections Act deprive this court of jurisdiction to hear the petition. Article 88(4)(e) provides that: (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 nomination but excluding election petitions and disputes subsequent to the declaration of election results.”

7. I was urged by the Applicant to consider the finding by the Supreme Court in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed and 3 others; Ahmed Muktar (Interested Party)[2019] eKLR where the court shed light on the operationalization and interpretation of Article 88(4)(e). It developed the principles to be employed which opens with a statement that:(a)all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the Independent Electoral and Boundaries Commission or PPDT, as the case maybe in the first instance.

8. Given the foregoing, the Applicant urges this court to find that the issue raised in the petitions is a matter within the jurisdiction of DRC (Dispute Resolution Committee) and not this court, and this court should therefore allow the application with punitive costs to the petitioners.

9. The petitioners also filed their submissions. They argue on similar basis and will evaluate their submissions together. They opposed the preliminary objection.

10. Their submissions is that they are well aware of the provisions of Article 88(4) of the constitution and Section 74(1) of the Elections Act, and given the existence of the exemption to the theory of exhaustion, the provisions position is not absolute.

11. While relying on the case of Republic v National Environment Management Authority Ex parte Sound Equipment Limited [2011] eKLR, they averred that the theory can be exempted in recognition and accommodation of exceptional circumstances in a matter. To buttress the point they relied on the case of Moffat Kamau and 9 others v Aelons (K) Limited and 9 others, where the court observed that:“Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “boot straps” or merely framed in Bill of Rights language as pretext to gain entry to the court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”

12. Lastly, it was submitted that this court under Article 165(3) and (6) of the constitution has unlimited original jurisdiction in criminal and civil matters.

13. I have evaluated the submissions by both sides in relation to the raised preliminary objection. The issue which I need determine is whether this court has jurisdiction to entertain the filed petitions.

14. There is no dispute in the matter that Independent Electoral and Boundaries Commission is the body that considers whether a candidate meets the statutory required qualifications to vie for a given seat or position.

15. The commission has a committee, Dispute Resolution Committee which is legally mandated to deal with pre-election disputes in accordance to Article 88(4)(e) of the constitution and Section74(1) of the Elections Act.

16. The petitioners have not demonstrated why they could not or did not consider taking the issue before the correct body for redress.

17. Quasi-judicial forums or bodies exists for a good reason and should be sufficiently utilized. Our courts are busy and mostly overwhelmed and it is only in deserving extra ordinary circumstances that they would open their hands to limit strict invocation of the theory of exhaustion.

18. I am not convinced that a matter of this nature, which questions existence or not of a university degree for a candidate, is in the said category.

19. I am well guided by the holding in the case of Republic v The Independent Electoral and Boundaries Commission, Ex parte Charles Ondari Chebet, where Justice Emukule held that:“In summary therefore, I find and hold that where there is clear constitutional and statutory provisions for resolutions of disputes including qualifications 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.”

20. From the foregoing considerations, it is clear that this court is in want of jurisdiction to hear the two petitions. As such I do find the preliminary objection merited. It is allowed and the petitions are therefore struck out. Parties to bear own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15THDAY OF JULY, 2022. S. M. GITHINJIJUDGE