[2016] KESC 14 (KLR)

Muruli v Oparanya & 3 others (Petition 11 of 2014) [2016] KESC 14 (KLR) (21 April 2016) (Ruling)

Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others [2016] eKLR

Neutral citation: [2016] KESC 14 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 11 of 2014

WM Mutunga, CJ & P, KH Rawal, DCJ & VP, PK Tunoi, MK Ibrahim, JB Ojwang, SC Wanjala & N Ndungu, SCJJ

April 21, 2016

Between

Mable Muruli

Appellant

and

Hon Wycliffe Ambetsa Oparanya

1st Respondent

Philip Museve Kutima

2nd Respondent

Nicholas Sumba

3rd Respondent

Independent Electoral and Boundaries Commission

4th Respondent

(Being an appeal from the Judgment of the Court of Appeal sitting at Kisumu (Azangalala, Mohammed and Ole Kantai JJA) dated 14th March, 2014 in Civil Appeal No.41 of 2013)

Circumstances under which the Supreme Court may overturn/overrule its own decision

Reported by Teddy Musiga and Mercy Cherotich

Jurisdiction– jurisdiction of the Supreme Court - jurisdiction to review its decisions – what were the principles to be considered before the Supreme Court could depart from its own decisions – claim where the applicant sought to review a decision of the Supreme Court on the grounds that the said decision was in conflict with other decisions of the Supreme Court on the meaning of declaration of election results - Constitution of Kenya article 163(7)Precedent– binding nature of precedents from the Supreme Court – circumstances in which the Supreme Court may depart from its own decisions – whether decisions (precedents) of the Supreme Court could be declared per incuriam - Constitution of Kenya article 163(7)Electoral law– declaration of election results – what was the meaning of declaration of results – claim seeking review of the Supreme Court’s decision in the Joho case on the declaration of election results - whether the Supreme Court would review its decision on grounds that there were conflicting decisions from the court on the subject matter about what was meant by a declaration of election results.Civil Practice and Procedure– suits – filing of suits – filing of applications for the review of Supreme Court decisions – principles to be considered when seeking review of a Supreme Court decision – procedure for seeking review of a Supreme Court decision - whether a review matter could be instituted by way of submissions – claim seeking review of the Supreme Court decision in Joho case on the meaning of declaration of results on the contention that it conflicted with other decisions of the Supreme Court - Constitution of Kenya article 159, 163; Supreme Court Rules 2012 (cap 9B) rule 20(4).

Brief facts The appellant filed the application before the Supreme Court seeking a review of the Supreme Court’s decision in Hassan Ali Joho and Another v. Suleiman Said Shahbal and 2 others. The review application emanated from a preliminary objection filed by the 1st and 2nd respondents. The respondents objected to the appellant’s appeal, on the ground that the High Court petition which the appeal originated from was filed outside the stipulated constitutional timelines, and that consequently, the court lacked jurisdiction to entertain it. They supported the contention with the court’s prior decisions, notably, the Joho case. The appellant, on the contrary, was of the view that the Joho decision was incorrect. He contended that there had been conflicting decisions in Mary Wambui Munene v. Peter Gichuki King’ara and 2 Others,Sup. Ct. Petition No. 7 of 2014; Peter Munya; and Lemanken Aramat v. Harun Meitamei Lempaka & 2 others, Sup Ct. Petition No.5 of 2014; and that there was obvious error in the prior Supreme Court interpretation of article 87(2), in Joho,in view of the holdings in the Wambui, Munyaand Aramat. The appellant further stated the overruling of Johowould be merely declaratory of a “prior virtual overruling”.

Issues

What were the principles to be considered before the Supreme Court could depart from its own decisions?

What was the meaning of declaration of election results?

Whether the announcement by the returning officer amounted to the declaration of election results.

Whether the Returning Officer was a mere employee or a representative of the Independent Electoral and Boundaries Commission (IEBC).

Held

Rule 20 (4) of the Supreme Court Rules, 2012 provided that a party desirous of moving the court to exercise its powers of review, had to do so by way of an application, rather than just incidentally, through submissions. The rules of procedure were a handmaid to the course of justice and had to be followed with fidelity.

Article 159 of the Constitution bore the principle that the exercise of judicial authority was to ensure that justice was done to all, irrespective of status; and that justice had to be administered without undue regard to procedural technicalities. In more general terms, that article reposed in the courts the obligation to protect and promote the purposes and principles of the Constitution. The courts were inclined to exercise its discretion as called for, and in the interest of justice, to overlook the procedural constraint. That, however, was not to compromise the important role of prescribed process in the fulfilment of goals of justice and of fair hearing.

A precedent of the Supreme Court could be departed from in certain recognized situations, where the Supreme Court had to choose between conflicting precedents;

where there had been obvious error in the prior Supreme Court decision;

where an express overruling was merely declaratory of a prior virtual overruling.

The Constitution anticipated that the court could in a proper case, depart from its decisions. Article 163(7) of the Constitution of Kenya, 2010 provided that, all courts, other than the Supreme Court, were bound by the decisions of the Supreme Court. What was in contention was whether circumstances which necessitated the court to depart from its precedent had arisen. Whether or not the apex court could adhere to its precedent, or depart therefrom, was dependent on that court’s perception of the claims of justice and equity, or of the fundamental constitutional or related principles coming to bear upon the issues raised.

The immediate pragmatic purpose of such an orientation of the judicial process was to ensure predictability, certainty, uniformity and stability in the application of the law. Such institutionalization of the play of the law gave scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marked also other spheres of social and economic relations.

In principle, an apex court could depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight. Such latitude for departure from precedent existed not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution.

There were grounds of substance which showed that the Supreme Court of Kenya could depart from its previous decisions of precedential value. In that regard, the purpose and intent flowed from two complementary articles. Article 159, which declared that the judicial authority was derived from the people, further stated that, the purposes and principles of the Constitution had to be protected and promoted. Article 259(1) stipulated that Constitution ought to be interpreted in a manner that permitted the development of the law. The inference was to be drawn was that the Supreme Court, if it was to ‘develop the law’, had to have the liberty to depart from previous decisions such as could stand as a constraint to the growth of the law.

The special role of precedent in the certainty and predictability of the law as it played out in daily transactions; any departure was to be guided by well recognized rules. It was a general rule that the court was not bound to follow its previous decision where such decision was an obiter dictum, or was given per incuriam(through lack of care). A statement obiter dictum was one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam was mistaken, as it was not founded on the valid and governing pillars of law.

The decision of a superior court could not be perceived as having been arrived at per incuriam, merely because it was thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process; the test of per incuriam was a strict one - the relevant decision having not taken into account some specific applicable instrument, rule or authority. Subject to the broad principle, certain directions could, be laid down: where there were conflicting past decisions of the court, it could opt to sustain and to apply one of them;

the court could disregard a previous decision if it was shown that such decision was given per incuriam;

a previous decision could not be disregarded merely because some, or all of the members of the bench that decided it had since arrived at a different conclusion;

the court could not depart from its earlier decision on grounds of mere doubts as to its correctness.

Recognizable political rights had vested in the parties, with consequent public-interest expectations on the part of the electorate.

The value of precedent in judicial decision-making was a recurring theme in the decisions of the court. The principle of stare decisis in Kenya unlike other jurisdictions was a constitutional requirement aimed at enhancing certainty and predictability in the legal system. The articles of establishment and jurisdiction revealed the court’s vital essence and the decisions of the Supreme Court protect settled anticipations by ensuring that the Constitution was upheld and enforced and that the aspirations of the Kenyan people embodied in a system of constitutional governance were legitimized.

The constitutional contours of article 163(7) obliged the Supreme Court to settle complex issues of constitutional and legal controversy and to give jurisprudential guidance to the lower courts. In the exercise of that mandate, the court determined the constitutional legality of statutes and other political acts to produce judicially-settled principles that consolidate the rule of law and the operation of government, and the political disposition, particularly in the settlement of electoral disputes. As a court entrusted with the final onus of settling constitutional controversies, one of the principal duties was the enforcement of constitutional norms. Therefore, no valid cause had been shown, for the court to exercise its power of review of its past decisions.

The concept of declaration of election results was considered and perceived by the Supreme Court, in the Joho case, as ‘declaration’ took place at every stage of tallying. For example, the first declaration took place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County tallying centre.

Thus the declaration of election results was the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration was depicted in the issuance of the certificate in Form 38 to the winner of the election. That marked the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

The declared election results, enumerated in the Forms provided, were quantitative, and involved a numerical composition. It would be safe to assume, therefore, that where a candidate was challenging the declared results of an election, a quantitative break down would be a key component in the cause. It must also be ascertainable who the winner, and the loser(s) in an election, was. The certificate in Form 38 declared the winner of the election and terminated the mandate of the returning officer, who acted on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the election court. It was held that the certificate in Form 38 comprised the declaration of election results. That declaration set in motion the time-frame within which to lodge an election petition. Consequently, the provision of section 76(1)(a) of the Elections Act was inconsistent with the provisions of article 87 (2) of the Constitution, as elaborated and was therefore declared unconstitutional to that extent.

Article 88(1) of the Constitution of Kenya, 2010 established the IEBC, and article 88(4) of the Constitution, outlined the responsibilities of the IEBC. The Elections (General) Regulations, 2012 in regulation 3, provided for the appointment of the Returning Officer by the Commission (IEBC). Under regulation 3(a), the Returning Officer was responsible for conducting elections at the constituency level. The Constitution in article 88(4) provided that, the Commission was responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution and any other elections as prescribed by an Act of Parliament. Section 87 of the Elections Act could not be equated to a constitutional provision, the Elections Act, and the Regulations thereunder, were normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and in interpreting them, a court of law could not disengage from the Constitution.

The Election (General) Regulations, 2012 were to be read in conformity with the Constitution. The effect was that, the Returning Officer was the IEBC, when conducting the relevant duties under the Constitution, the Elections Act, and the Regulations thereunder. No less relevant was the Independent Electoral and Boundaries Commission Act, 2011. That Act, in section 4, set out the functions of the IEBC which were for the most part, replicated in article 88(4) of the Constitution of Kenya, 2010. It also provided for the composition of the Commission.

The IEBC Act also provided for a Secretary to the Commission (section 10), who was appointed pursuant to article 250(12) of the Constitution of Kenya, 2010. The Secretary was the Chief Executive Officer of the Commission; head of the secretariat; accounting officer of the Commission; custodian of all Commission records; bearer of responsibility for executing decisions of the Commission; officer in charge of assignment of duties and supervision of all employees of the Commission; facilitator, co-ordinator and executor of Commission’s mandate; guarantor of staff compliance with public ethics and values; executor of such other duties as may be assigned by law and by the Commission. Without a doubt, the Secretary was a vital component of the IEBC – indeed, a central part of the IEBC, regardless of not bearing the designation “Commissioner”. Section 11 of the Act made provisions regarding employees of the Commission, who conducted their functions at headquarters, and at the numerous regional offices of IEBC.

It would be impractical to expect the Commissioners, to conduct all the functions entrusted to the Commission under article 88 (4) of the Constitution . The Secretary could hardly do without employees entrusted with specified duties. Had it been the case that, all such tasks devolved only to Commissioners, the consequence would be that all actions routinely taken by the IEBC staff, such as continuous registration of voters, regular revision of voters’ roll, and registration of candidates, would be a nullity in law.

There was need to avoid such construction of the Constitution as would be contrary to the public interest. The requisite approach in interpreting article 88 (1) of the Constitution was one that vindicated the constitutional purposes and objectives, and that fostered good governance, in accordance with the terms of article 259. Good governance in that instance entailed ensuring that the constitutional functions of the Commission did not come to a standstill, as was destined to happen if the discharge of such functions were left entirely to the nine Commissioners.

The IEBC comprised of the Commissioners, as well as its employees who had been duly authorised. Consequently, and in accordance with the Joho precedent, the returning officer, an employee of the IEBC, properly acted on its behalf.

Application dismissed with costs to the applicant.

Citations CasesKenya Aramat & another v Lempaka & 3 others (Petition 5 of 2014; [2014] KESC 21 (KLR)) — (Mentioned)

Equity Bank Limited v West Link Mbo Limited Civil Application 78 of 2011; [2013] KECA 320 (KLR) - (Mentioned)

In the Matter of the National Gender and Equality Commission (Reference 1 of 2013; [2014] KESC 42 (KLR)) — (Explained)

Joho & another v Shahbal & 2 others (Petition 10 of 2013; [2014] KESC 34 (KLR)) — (Mentioned)

Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014 (Consolidated); [2014] KESC 11 (KLR)) — (Mentioned)

Mable Muruli v Independent Electoral & Boundaries Commission & another (Petition 93 of 2013; [2013] KEHC 5279 (KLR)) — (Mentioned)

Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others (Election Petition 5 of 2013; [2013] KEHC 5991 (KLR)) — (Explained)

Munene v King’ara & 2 others(Petition 7 of 2014; [2014] KESC 37 (KLR)) — (Mentioned)

Munya v Kithinji & 2 others (Petition 2 of 2014; [2014] KESC 49 (KLR)) — (Mentioned)

Obado v Oyugi & 2 others (Petition 4 of 2014; [2014] KESC 22 (KLR)) — (Mentioned)

Outa v Okello & 3 others (Petition 6 of 2014; [2017] KESC 25 (KLR)) — (Mentioned)

Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others(Petition 4 of 2012; [2014] eKLR) — (Explained)

Wanjohi v Kariuki & 2 others (Petition 2A of 2014; [2014] KESC 26 (KLR)) — (Mentioned)

UgandaUganda Law Society v Attorney-General of the Republic of Uganda (Petition No. 18 of 2005) — (Explained)AustraliaBrodie v Singleton Sire Council (2001) 206 CLR 512 - (Mentioned)IndiaBengal Immunity Company Limited v state of Bihar & others ([1954] INSC 120) — (Mentioned)United Kingdom Brodie v Singleton Sire Council(2001) 206 CLR 512 — (Mentioned)

Food Corp. of India v Antclizo Shipping Company [1988] 1 WLR 603; [1988] 2 All ER 513 — (Mentioned)

Horton v Sadler [2006] UKHL 27 — (Mentioned)

Morelle v Wakeling [1955] 2 QB 3379 — (Mentioned)

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 — (Mentioned)

Texts Blaustein, AP., Field, AH., (Eds) (1958), Overruling Opinions in the Supreme Court Michigan Law Review Vol 57 No 2

Cross, R., Harris, JW., (Eds) (1991), Precedent in English Law Oxford : Carendon Press p 3

Garner, BA., (Ed) (2009), Black’s Law Dictionary St Paul Minnesota: West Group 9th Edn

Osborne, PG., Burke, J., (Eds) (1976), Concise Law Dictionary London : Sweet & Maxwell 6th Edn p 293

Wright, L., (Ed) (1943), Precedents Cambridge Law Journal Vol 8 pp 118-145

StatutesKenya Constitution of Kenya articles 81, 87(2); 163(4); 250(4); 259; 263 — (Interpreted)

Elections Act (cap 7) sections 22(2); 75; 76(1) — (Interpreted)

Elections (General) Regulations, 2012 (cap 7 Sub Leg) regulations 3, 4(c); 87 — (Interpreted)

Independent Electoral and Boundaries Commission Act (cap 7C) sections 4, 5, 11 — (Interpreted)

Supreme Court Act (cap 9B) section 15 — (Interpreted)

Supreme Court Rules, 2011 (cap 9B Sub Leg) rules 4, 19(3)(4) — (Interpreted)

Supreme Court Rules, 2012 (cap 9B Sub Leg) rules 9, 33 — (Interpreted)

Advocates Mr. Mwenesifor the appellant.

Mr. Owala for the appellant.

Mr. Nyaundi for the 1st and 2nd respondents.

Mr. Kilonzo for the 3rd and 4th respondents.

Ruling

Introduction 1. This is an application for review, by the appellant, of this Court’s decision in Hassan Ali Joho andanother v. Suleiman Said Shahbal andtwo others, Sup. Ct. Petition No. 10 of 2013. The review application emanates from a preliminary objection filed by the 1st and 2ndrespondents. The respondents object to the appellant’s appeal, on the ground that the High Court petition which the appeal originates from, was filed outside the stipulated constitutional timelines, and that consequently, this Court lacks jurisdiction to entertain it. They support this contention with this Court’s prior decisions, notably, the Joho case. The appellant, on the contrary, is of the view that the Joho decision was incorrect. So, the appellant asks for a full Bench of this Court to depart from, or overrule that decision.

B. Background (a) Proceedings in the High Court 2. The appellant intended to vie for the position of Governor of Kakamega County. She presented her nomination papers to the returning officer for that County, but these were rejected. She appealed to the Independent Electoral and Boundaries Commission (IEBC) Tribunal, but her appeal was dismissed. She filed a petition, Mable Muruli v. Independent Electoral & Boundaries Commission &another, Nairobi High Court Petition No. 93 of 2013, seeking: a declaration that she was a degree- holder within the meaning of section 22 (2) of the Election Act,2012, entitled to vie for the position of County Governor; a mandatory injunction compelling the Commission to accept her nomination papers and issue her with a clearance certificate to contest for the seat in question; a mandatory injunction compelling the Commission to include her name in the list of candidates and ballot papers, as an independent candidate for the gubernatorial seat.

3. In a Ruling delivered on February 13, 2013, Ogola J ordered that the appellant, who was qualified for candidature, be included on the ballot paper. However, the 4th respondent failed to take action upon the Court’s directive. The appellant instituted contempt proceedings; and the 4th respondent for its part, filed a Notice of Motion asking the Court to review its Ruling dated February 13, 2013, on the ground that the Court had issued Orders without full facts. Before the two applications could be heard, both parties entered into a consent Judgment, on February 20, 2013, to this effect: the petition be marked as settled; right of the appellant under section 75 of the Election Act reserved; appellant be paid costs; application for leave to cite officers of the IEBC for contempt of Court, be marked as spent; application by the IEBC for review of the said Judgment, also be marked as spent.

4. The appellant, however, did not participate in the elections as a candidate. The elections were completed, and the results for the Kakamega gubernatorial seat declared on March 6, 2013. The appellant, who was dissatisfied with the election outcome, lodged an Election Petition, Mable Muruli v. Hon. Wycliffe Ambetsa Oparanya & 3others, Pet. No.5 of 2013 at the High Court in Kakamega, on April 8, 2013.

5. She sought a declaration that: her fundamental rights and freedoms, as enshrined in the Constitution, were violated and compromised by the 3rd and 4th respondents; the election of 1stand 2nd respondents as a Governor and Deputy Governor be declared null and void, and fresh elections be ordered and held in Kakamega County; a determination be made to the effect that the 1st and 2nd respondents were not validly elected, due to failure on the part of the 3rd and 4th respondents to hold free, fair and crediblenominations on January 31, 2013; the 3rd and 4th respondents be condemned to pay costs of this petition, and other incidental costs.

6. Chitembwe J, on September 13, 2013 dismissed the petition, and found that the appellant had not provided sufficient evidence to warrant the nullification of the election. He determined that the election was free and fair.

(b) Proceedings in the Court of Appeal 7. Dissatisfied with the High Court’s decision, the appellant sought redress in the Court of Appeal, which considered 11 separate grounds urged by the appellant:(i)that the trial Court failed to appreciate the legal import of the appellant's constitutional rights to participate as a candidate in the said election;(ii)that such failure by the trial Judge led to the disenfranchisement of the electorate;(iii)that the learned Judge failed to understand the legal import of the consent Order recorded in Mable Muruli v. Independent Electoral & Boundaries Commission & Another Nairobi High Court Petition No. 93 of 2013;(iv)that the learned Judge erred in holding that all issues pertaining to the nomination of the appellant as a candidate for the said seat, had been settled in Petition No. 93 of 2013;(v)that the learned Judge misapplied and misunderstood the concept of res judicata and estoppel;(vi)that the learned Judge erred in not holding that the electoral offence of bribery had been committed by the 1st and 2nd respondents, and in applying a higher standard of proof than the law requires;(vii)that the learned Judge did not properly analyze the evidence and submissions presented by the appellant;(viii)that the learned Judge had been biased in favour of the 1st and 2ndrespondents, and did not accord the appellant equality before the law;(ix)that dismissal of the appellant's petition was contrary to law ;(x)that the learned Judge had contradicted himself in analysis of the evidence on record;(xi)that such contradictions led to the Judge misdirecting himself in law, in finding that the 1st and 2ndrespondents had been validly elected to office.

8. The appellate court, in its decision of March 14, 2014, observed that the appellant had voluntarily settled the petition, with Judgement being pronounced in her favour in the High Court. Thus, in the perception of that Court, this was a typical case of the appellant craving for a second bite at the cherry. The Appellate Court determined that the doctrines of estoppel and res judicata should apply in this case; the appellant should not claim that there had been a contravention of her constitutional rights. The Appellate Court found the appellant’s complaints regarding bribery to be groundless; and it held the appeal to be devoid of merit, mulcting the appellant in costs.

(c) Proceedings in the Supreme Court 9. Aggrieved by the said Judgment, the appellant, on April 22, 2014 filed a petition of appeal, founded upon article 163 (4) (a) of the Constitution, section 15 of the Supreme Court Act, and rules 9 and 33 of the Supreme Court Rules. Her grounds were formulated as follows:(a)the Court of Appeal exceeded its jurisdiction under Articles 87 (1) and 164(3) of the Constitution, by contravening the provision of Section 85 A of the Elections Act, which limits its competence in respect of election petitions to matters of law only;(b)the Court of Appeal erred in failing to appreciate the import of the appellant’s constitutional right to participate as a candidate in terms of Article 38 of the Constitution;(c)the Court of Appeal erred and misdirected itself in law and in fact, in failing to appreciate that the infringement of the appellant’s right aforesaid would result in the disenfranchisement of the electorate, and this was a breach of the fundamental rights of the electorate, to free expression, in the terms of Article 38 of the Constitution;(d)the Court of Appeal erred in law in misinterpreting the content, meaning and legal import of the consent Order recorded in Mable Muruli v. Independent Electoral & Boundaries Commission & another Nairobi High Court Petition No. 93 of 2013;(e)the Court of Appeal erred in law by failing to make a finding on the issue whether the entire subject of nomination of the appellant as a candidate, and all issues adjudicated in Mable Muruli v. Independent Electoral & Boundaries Commission & Another Nairobi High Court Petition No. 93 of 2013, were res judicata;(f)the Appellate Judges disregarded the grounds of appeal raised by the appellant, contrary to Article 25 (c) of the Constitution;.(g)the Court of Appeal erred in penalising the appellant in costs, for matters that were solely within the control of the 3rd and 4th respondents, as the managers and supervisors of the elections ;(h)the Court of Appeal contravened Article 163(7) of the Constitution, by ignoring precedent set by the Supreme Court.

10. The reliefs sought are that the Judgement and Orders of the Court of Appeal in Civil Appeal 41 of 2013 be set aside, and that:(i)a declaration be made that the petitioner’s fundamental rights and freedoms, as enshrined in Article 38 of the Constitution, were violated;(ii)a declaration be made that the 1st and 2nd respondents were not validly, impartially and fairly elected as Governor and Deputy Governor for Kakamega County, on account of failure by the 3rd and 4th respondents to hold free, fair and credible nominations on January 31, 2013 and February 1, 2013, and elections on March 4, 2013;(iii)the election of the 1st and 2nd respondents as the Governor and Deputy Governor for Kakamega County be declared null, and a certificate to that effect issued;(iv)fresh gubernatorial elections be ordered and held in Kakamega County, to accord the petitioner and the entire electorate of Kakamega County, an opportunity to participate in free, fair and transparent elections as envisaged in the Constitution and the electoral laws;(v)the costs of this petition be awarded to the petitioner;(vi)such other relief or Orders as may be deemed fit and just to grant , be granted.

11. The 1st and 2nd respondents filed a notice of preliminary objection, dated May 9, 2014. They objected to the proceedings on grounds that: the appeal is grounded on a High Court petition filed outside the time permitted by article 87 (2) of the Constitution: the declaration of results for the Kakamega gubernatorial office was made on the 6th March, 2013 ; any election petition based on this declaration ought to have been filed on or before April 3, 2013; the High Court petition from which this appeal originates was filed on April 8, 2013, a time outside the constitutionally- permitted period; that for these several reasons, this Court lacks jurisdiction to entertain this appeal.

(d) Seeking a Review of earlier Decisions of the Supreme Court 12. The matter came up for hearing on October 28, 2014 before a five- Judge Bench of this Court. Counsel for the appellant called upon the Court to review its past decisions, and this was the basis of the 1st and 2nd respondents’ preliminary objection. He also asked for a seven- Judge Bench to hear the matter. The Court directed that the appellant formulate specific issues, and serve the same upon other parties, so they may respond as necessary.

The Parties’ Respective Cases The Appellant 13. The appellant formulated two issues for the Court’s determination:

(i) can the Court, in certain circumstances, depart from, or overrule/overturn its earlier decisions on an issue? (ii) what is the meaning of ‘declaration of elections results’, as used in Article 87(2) of the Constitution. 14)Counsel submitted that a Bench of this Court, in the Joho Case, had declared section 76(1) of the Election Act to be a nullity, as it was inconsistent with Article 87 (2) of the Constitution; and that this Court, in Mary Wambui Munene v. Peter Gichuki King’ara and 2others Sup. Ct. Petition No. 7 of 2014, adopted that finding, without any evaluation or examining the facts, and without attempting an independent interpretation of the Constitution or the applicable statutory provision, holding that it was bound by that decision. The appellant’s counsel urged that this Court can, in appropriate circumstances, depart from, overrule or overturn its earlier decisions. He relied on article 163(7) of the Constitution, and rule 19(3) and (4) of the Supreme Court Rules 2011. He submitted that a review presents an opportunity for a Court to depart from its earlier decisions. In this regard, he invoked the Ugandan decision, The Uganda Law Society v. the Attorney-General of the Republic of Uganda, Petition No. 18 of 2005, and the Indian Supreme Court case, The Bengal Immunity Company Limited v The state of Bihar and others [1954] INSC 120. Learned counsel for the appellant, Mr. Mwenesi and Mr Owala, urged that the Constitution allowed this Court to depart from a previous decision if convinced of its error.

15. Urging that the relevant precedents of this Court should be departed from, counsel relied on A.P. Blaustein’s article entitled “Overruling Opinions in the Supreme Court”, in Michigan Law Review, Vol. 57 No. 2, December 1958. The author justifies such departure from precedent (at page 168) in certain specific instances:(i)where the Supreme Court has to choose between conflicting precedents;(ii)where the Supreme Court has to follow a State Court’s interpretation of a State Constitution or statute–and that interpretation is contrary to the Supreme Court’s prior decision; (iii) where the Supreme Court’s prior interpretation is impracticable, resulting in hardship or inconvenience; (iv) where there has been obvious error in the prior supreme Court decisions; and (v) where an express overruling is merely declaratory of a prior virtual overruling.

16. Counsel urged that the Joho case, which is the subject of objection, fell squarely under conditions (i), (iv) and (v) in the foregoing scheme. He submitted that there had been conflicting decisions in Mary Wambui Munene v. Peter Gichuki King’ara and 2 Others, Sup. Ct. Petition No. 7 of 2014; Peter Munya; and Lemanken Aramat v. Harun Meitamei Lempaka &two others, Sup Ct. Petition No.5 of 2014; [2014] eKLR; and that there was obvious error in the prior Supreme Court interpretation of article 87(2), in Joho, in view of the holdings in the Wambui, Munya and Aramat. Counsel submitted that, the overruling of Joho would be merely declaratory of a “prior virtual overruling”.

17. Counsel relied on a work by C.P. Banks, entitled Reversals of Precedent and Judicial Policy-making: How Judicial Conceptions of stare decisis in the United States Supreme Court influence Social Change, as a basis for criteria to guide the Court in deciding whether or not to depart from its earlier decisions. The following passage in that work is relevant (page 3):“Judges should give more or less weight to several factors, including: First whether the Court is deciding a constitutional or statutory case; second whether the underlying decision is inconsistent with justice or social welfare; and third, whether the precedent has produced a substantial reliance that prevents the court from overruling it …; the fourth factor is whether the underlying court spoke with one voice in pronouncing the rule of law; that is the force of the precedent depends upon whether the Court making the precedent is unanimous or divided. The last key variable of the traditional paradigm is the age of the precedent, where the weight afforded the principle is contingent upon whether it has emerged as an authoritative rule over time.”

18. Counsel urged that the Joho precedent, as it was made on February 4, 2014, remains a recent decision, that has not been the subject of much reliance; and thus, a departure from it is by no means impractical.

19. Counsel submitted that the Joho precedent, though unanimously arrived at, was made per incuriam. He contended that the decision detracts from considerations of justice, in that it locks out litigants with legitimate electoral disputes, curtailing their constitutional rights under Article 48.

20. Mr. Mwenesi submitted that ‘declaration’, as depicted in Joho, was erroneous and that the “declaration of election results” as envisaged in article 87 (1) of the Constitution, is the final stage of the electoral process, and ought to coincide with the principles and standards set out in articles 81, 259 and 263 of the Constitution. He urged that the Constitution be read as an integral whole.

21. Counsel submitted that the Supreme Court, in Joho, had overlooked the fact that the term “Gazette”, in section 76 of the Election Act, was defined in the Constitution; and that regulation 87 (4) (b) has to be read with Regulation 87(4) (a), which refers to the IEBC ‘declaring’ results by notice in the Gazette. He cited Black’s Law dictionary (9th edn) as defining a declaration, as a “formal statement, a proclamation or announcement especially one embodied in an instrument.” He contended that the signed Form 38 by the Returning Officer was not the “declaration” envisaged under article 87 (2) of the Constitution. He urged that if the Gazette Notice is the instrument used to declare Presidential election results, it would also be the instrument used by the IEBC to declare other results for the purposes of article 87(2) of the Constitution. He submitted that article 87 of the Constitution contemplated a declaration by the IEBC– the body corporate– and not that by an employee, a servant or an agent. He urged that a returning officer is an employee, or officer of the Commission, and not a member of the IEBC: and that logically, a returning officer could not make the requisite declaration under article 87(2) of the Constitution.

22. Counsel submitted that this Court, in Aramat, Wambui, and Peter Munya recognised that the publication of election results by IEBC in the Gazette, is indeed a declaration of the same. He urged that the proper meaning of ‘declaration of election results’, if the Constitution is holistically interpreted, is a formal statement, a proclamation, or an announcement by the IEBC. He urged that the holding in Joho, declaring section 76(1) of the Election Act null, as it was inconsistent with the Constitution, was erroneous. He urged the Curt o overturn the Joho precedent.

(ii) The 1st and 2nd Respondents 23. Learned counsel Mr. Nyaundi for the 1st and 2nd respondents, did not dispute the submission that this Court has the power to depart from its previous decisions; and he acknowledged the terms of article 163 (7) of the Constitution.

24. Counsel, however, remarked as point of contention, the circumstances that would compel a Court to depart from its precedent. Counsel relied on principles expressed by this Court in Jasbir Singh Rai and Three Others v. The Estate of Tarlochan Singh Rai andfour others, Sup. Ct. Petition No. 4 of 2012, urging that the power of the Court to review its past decisions was limited, and located within the concept of horizontal stare decisis; and that this principle required the Court to promote certainty, consistency and uniformity in its decisions.

25. Counsel submitted that sustenance of precedent was a normal judicial commitment, for attaining uniformity, consistency and certainty (Rupert Cross and J. W. Harris, Precedent in English Law, 4th Ed. (Oxford : Carendon Press, 1991) p.3. ) Counsel urged that a party could only invite the Court to depart from its decision if that decision was lacking in merit, and should not be sustained as a reference-point for future litigation. Counsel submitted that the appellant’s case ought to entail more than the claim that applying the Joho case would occasion loss of her appeal.

26. Learned counsel submitted that Courts only depart from a precedent when it is clearly erroneous. Relying on Lord Wright’s article on ‘Precedents’, in Cambridge Law Journal (1943) vo. 8, pp.118-145, counsel urged that the power to depart from precedent is limited, and must be used sparingly, always with an inclination towards certainty in law. He also cited decisions from comparative jurisprudence: Brodie v. Singleton Sire Council (2001) 206 CLR 512; Horton v. Sadler [2006] UKHL 27; Rees v. Darlington Memorial Hospital NHS Trust [2003] UKHL 52; and Food Corp. of India v. Antclizo Shipping Company (1988) 1 WLR 603, (1988) 2 ALL ER 513.

27. Counsel contested the appellant’s assertion that the Joho decision was per incuriam. He urged that a decision reached per incuriam, is one arrived at through carelessness or mistake, such as could be avoided. He cited the English decision in Morelle v. Wakeling [1955] 2 QB 3379, which held that per incuriam decisions are those given in ignorance, or in forgetfulness of some inconsistent statutory provision, or some authority binding the Court concerned. Counsel urged that, in a per incuriam decision, the position is that, had the Court reviewed the facts, it could have reached a different outcome. Counsel submitted that the Joho decision was well-reasoned, thorough, comprehensive, and represented a judicious application of the law to the facts, apart from bearing a meticulous consideration of the multiple facets of the question before the Court.

28. Learned counsel submitted that the matter before the Court was an electoral question affecting a political office, a subject bearing considerable political, social and economic ramifications. He urged that there was no reason to seek a departure from the Court’s previous decision.

29. Counsel submitted that the appellant had not demonstrated any error in the Joho case, or any baneful effect it might have on the public. He urged further, that the appellant had shown no inconsistency in the Supreme Court precedents, with respect to the matters in issue; or any error in the Supreme Court decisions; nor demonstrated that the court’s ruling was merely declaratory of some prior, “virtual overruling”. Counsel submitted that the appellant had not made a case for departure from the precedent set in the Joho case. He urged the court to disallow review, by following its precedent in the Rai Case.

30. Counsel contested the appellant’s submission that there was a distinction between the IEBC, as a corporate entity, and the County Returning Officer. He submitted that article 88 of the Constitution established the IEBC; Article 88(2) made a distinction between the IEBC and its members; and Article 88(5) allowed the IEBC to exercise its powers in accordance with the Constitution and other national legislation. He urged that part of the national legislation encapsulated the Elections (General) Regulations, 2012, whereby a key function of the Returning Officer is making ‘declaration’, under regulations 3 and 4. He urged that the meaning of the word ‘declaration’ in article 87(2) of the Constitution, was the same as that in rule 4(c) of the Election regulations. He submitted that while a ‘declaration’ is a ‘formal statement, a proclamation or announcement especially one embodied in an instrument,’ the act of the County Returning Officer provided under regulation 4 (c), must be seen at the final act prescribed under article 87 (2) of the Constitution.

(iii) The 3rd and 4th Respondents 31. Learned counsel Mr. Kilonzo, submitted that the appellant’s submissions were not the proper occasion for a review of the Joho decision, in view of rule 20(4) of the Supreme Court Rules, 2012. He urged that this Rule contemplates ‘an application’ for review, whereas the appellant’s counsel had filed submissions instead. He relied on this Court’s decision in the Rai Case, submitting that, to exercise its review jurisdiction, the Court must be properly moved. He relied on the Court of Appeal’s decision in Equity Bank Limited v. West Link Mbo Limited [2013] eKLR, which held that the issues that court was being asked to determine, were not brought in appropriate proceedings, and any conclusion upon them would, therefore, be obiter. Counsel urged this court to hold that the manner in which it had been moved does not constitute appropriate proceedings, upon which to exercise its power of review.

32. Counsel contested the appellant’s contention that this court’s finding on the constitutionality of section 76 of the Election Act was at variance with the court’s findings in other cases: Wambui; Munya; Aramat. He submitted that the appellant had made an omnibus application for review, in which she gave no particulars, nor suggested a course of interpretation which would sustain the judicial principles of predictability, certainty, uniformity and stability in the application of the law. Counsel submitted that all the several decisions are consistent, as regards timelines in electoral-dispute proceedings. He urged that the decisions, though incremental in elements of electoral-dispute jurisprudence (especially as regard timelines), are separate and distinct precedents, forming the basis for different legal principles.

33. Counsel submitted that it was not the case–contrary to the appellant’s stand–that this courtin Aramat ,Wambui, Munya, signalled that the publication of the election results by IEBC in the Gazette is what amounts to a declaration of the same. He urged that a Gazette notice does not declare the election results as contemplated in article 87 (2) of the Constitution. Counsel submitted that the Gazette notice is merely meant to inform the public; and the declaration of the election result by the IEBC as perceived in both Wambui and Munya, refers to the declaration by the respective Returning Officers, in accordance to article 87 (2) of the Constitution.

34. Counsel submitted that to depart from its previous decisions, in this instance, would occasion a major public disruption, as it would mean that all persons elected for the various positions would cease to be duly elected. Consequently, the Court would have to determine who the proper office- holders should be; and this would reopen settled issues, and occasion fresh litigation–which would go against the recognized principle that there must be an end to litigation.

35. Learned counsel submitted that the Returning Officer is the IEBC, for the purpose of article 87 (2) of the Constitution. He urged that the term ‘returning officer’ is a term of art, historically evolved from the common law position into formal legislative instruments. The term had a distinct meaning: the person who returns the result of the ballot. The term is thus defined, in Osborne’s Concise Law Dictionary, 6th Ed. (1976) [page 293]: “A person responsible for the conduct of an election”. Counsel submitted that it is inapposite to perceive Returning Officers as mere employees; for such a perception would mean that only “commissioners” could conduct elections. He urged that such an interpretation would occasion absurdity, quite apart from being contrary to the public interest. He submitted that the IEBC can only discharge its functions and mandates through persons, be they employees or Commissioners. He urged this court to eschew interpretations of the law such as would lead to absurd or illogical results, and, in this context, to decline to review the decisions in Joho, Wambui, Munya and Aramat.

36. In response, learned counsel for the appellant submitted that there would, indeed, be political consequences to his client’s prayers before this Court. He however, invited the Court to the intrepid course, of making what may appear as a political decision. He submitted that the IEBC was to be distinguished from its employees, and that regulation 87(4) flowed from section 76 (1) of the Election Act, which remained in the statute book, notwithstanding the Supreme Court’s decision to annul it.

D. Issues For Determination 37. From the documentation filed, and from the written and oral submissions tendered by the parties, it is clear to us that the following issues fall for determination:(i)whether a basis exists for the Supreme Court to consider departing from earlier decisions?(ii)what is the meaning of ‘declaration of election results,’ as used in Article 87 (2) of the Constitution?(iii)whether the Returning Officer during the conduct of national elections, is a mere employee, or the valid representative of IEBC?

E. Analysis (i) Is there a Basis for the Supreme Court to consider departing from its earlier Decisions? 38. It is to be noted that the appellant’s counsel only sought a review of the various decisions of this court (Joho and its progeny) after the 1st and 2nd respondents raised a preliminary objection anchored on the said decisions. The appellant’s counsel on November 4, 2014 filed a document titled ‘Petitioner’s submission on the preliminary objection’, in which he sets out his case for review. We have accommodated the submission by virtue of rule 20(4) of the Supreme Court Rules, which thus provides:“The court may, in circumstances it considers exceptional, on application by any party or on its own motion, review any of its decisions”.

39. It was a duty incumbent upon the appellant, to comply with rule 20 (4) of the Supreme Court Rules, 2012: a party desirous of moving the Court to exercise its powers of review, should do so by way of an application, rather than just incidentally, through submissions. Such an issue had come up before this court in In the Matter of the National Gender and Equality Commission, Reference No. 1 of 2013, the court thus observing (paragraphs 27,28, 29):“Though not forming part of the issues for determination, a matter arose in the course of filing the pleadings that caught our attention. Upon the institution of the reference, the interested party (IEBC) filed a notice of preliminary objection. Upon being served with the notice, the applicant proceeded to file what it termed as ‘ a notice of preliminary objection to the notice of preliminary objection’ Ordinarily, a party files grounds of opposition in response to a preliminary objection However, counsel for the applicant argued that he was justified in filing a parallel notice of preliminary objection; because the preliminary objection as filed by the IEBC was ‘ bad in law’, as it did not seek to raise a pure point of law.“It is our position that parties should not endeavour, in their pursuit of creativity, to introduce ‘new pleadings’ unknown to the law. The rules of procedure are a handmaid to the course of justice and should be followed with fidelity.“The court decided, however, to exercise its discretion on the basis of article 159 of the Constitution, and to consider the essence of both sets of preliminary objection in a holistic framework.”

40. We are mindful of article 159 of the Constitution, which bears the principle that the exercise of judicial authority is to ensure that justice shall be done to all, irrespective of status; and that justice shall be administered without undue regard to procedural technicalities. In more general terms, that article reposes in the Courts the obligation to protect and promote the purposes and principles of the Constitution. In this instance we are inclined to exercise our discretion as called for, and in the interests of justice, to overlook the procedural constraint.This, however, is not to compromise the important role of prescribed process, in the fulfilment of goals of justice, and of fair hearing.

(ii) The Question of departing from the Supreme court’s earlier decisions 41. The appellant contends that the Joho case has resulted in conflicting decisions. He relies on the scholarly writings of AP Blaustein, based on the United States of America’s Supreme Court experience. In that experience, a precedent of the supreme Court can be departed from in certain recognized situations, as follows:(a)where the Supreme Court must choose between conflicting precedents;(b)where there has been obvious error in the prior Supreme Court decision; and (c) where an express overruling is merely declaratory of a prior “virtual overruling”.

42. Counsel contends that the Joho case falls within situations (a) (b) and (c) above. By his submission, the Wambui, Munya, and Aramat decisions are in mutual conflict, and are the manifestation of error in the interpretation of article 87(2) of the Constitution. However, this bold assertion, in our perception, is not supported with any detailed account.

43. As regards the Joho precedent, counsel submitted that it is only a recent decision, upon which no substantial reliance has been placed. He contended that Joho was arrived at per incuriam, and that it is inconsistent with principles of justice, in so far as it locks out litigants with legitimate electoral disputes.

44. It is not in contention that this court can depart from its previous decisions. Indeed, the Constitution anticipates that the court may in a proper case, depart from its decisions. Article 163(7) provides that: “all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”What is in contention is whether circumstances have now arisen that necessitate this court departing from its precedent. The court has discussed the significance of the doctrine of precedent, and considered the issue of departure therefrom, in the Rai case. On that occasion the court thus observed (at paragraphs 41, 42, 43, 44,46, 50 51, 52):“Whether or not the apex court will adhere to its precedent, or depart therefrom, is dependent on that court’s perception of the claims of justice and equity, or of the fundamental constitutional or related principles coming to bear upon the issues raised.“The immediate pragmatic purpose of such an orientation of the judicial process, is to ensure predictability, certainty, uniformity and stability in the application of the law. Such institutionalization of the play of the law gives scope for regularity in the governance of commercial and contractual transactions in particular, though the same scheme marks also other spheres of social and economic relations.“In principle, therefore, it follows that this Court, an apex Court, can indeed depart from its previous decision, for good cause, and after taking into account legal considerations of significant weight.“ Such a latitude for departure from precedent exists not only in principle, and from well-recorded common law experience, but also by virtue of the express provision of the Constitution…….“There are other grounds of substance which show that the Supreme Court of Kenya may depart from its previous decisions of precedent-value. In this regard, the purpose and intent flows from two complementary articles. Article 159 which declares that the judicial authority is derived from the people, further states that: ‘the purposes and principles of this Constitution shall be protected and promoted’; and article 259 (1) thus stipulates:‘This Constitution shall be interpreted in a manner that…permits the development of the law.’The inference is to be drawn that the Supreme Court, if it is to ‘develop the law’, has to have the liberty to depart from previous decisions such as may stand as a constraint to the growth of the law…“For the special role of precedent in the certainty and predictability of the law as it plays out in daily transactions, any departure is to be guided by rules well recognized. It is a general rule that the Court is not bound to follow its previous decision where such decision was an obiter dictum(side-remark), or was given per incuriam (through inattention to vital, applicable instruments or authority). A statement obiter dictum is one made on an issue that did not strictly and ordinarily, call for a decision: and so it was not vital to the outcome set out in the final decision of the case. And a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law.“Comparative judicial experience shows that the decision of a superior Court is not to be perceived as having been arrived at per incuriam, merely because it is thought to be contrary to some broad principle, or to be out of step with some broad trend in the judicial process; the test of per incuriam is a strict one – the relevant decision having not taken into account some specificapplicable instrument, rule or authority.“ Subject to that broad principle, certain directions may, on this occasion, be laid down:(i)where there are conflicting past decisions of the Court, it may opt to sustain and to apply one of them;(ii)the courtmay disregard a previous decision if it is shown that such decision was given per incuriam;(iii)a previous decision will not be disregarded merely because some, or all of the members of the Bench that decided it might now arrive at a different conclusion;the courtwill not depart from its earlier decision on grounds of mere doubts as to its correctness.”

45. Counsel for the appellant, as we have observed, has not clearly shown any situations of conflict, error, or public-interest infractions in the Joho, Wambui, Munya 2B and Aramat cases. If anything, the decisions in Wambui, Munya 2B and Aramat are fundamentally consistent with the findings in Joho.

46. We are, with respect, not persuaded by learned counsel’s argument that Joho has yet to generate a substantial level of reliance such as makes a definitive case for sustenance. It is relevant in this regard that in Rai, we thus observed (paragraph 77):“If it may be thought that any error was entailed in the Court’s perception of jurisdiction, such an apprehension by itself, would not justify the reversal of the Macharia Ruling, a decision which, as we must take judicial notice, will have established itself as a mark of certainty and predictability in the law, and on the basis of which numbers of people will have figured out their rights and expectations. In these circumstances, in our view, public policy will not stand on the side of reversal of precedent”.

47. On the foregoing principle, we take judicial notice that Joho has been endorsed in numbers of election petitions, that have come before this Court. Examples are: Wambui, Munya 2B, Aramat, Lisamula; and the Appellate Court case, Posh Aborwa. In all these decisions, this Court and the appellate court have laid out a set of guiding principles. Besides, it is by no means insignificant that, recognizable political rights have vested in the parties, with consequent public-interest expectations on the part of the electorate.

48. The value of precedent in judicial decision-making is a recurring theme in our decisions such as: Wanjohi v. Kariuki &others Petition No. 2A of 2014 (paragraphs 79, 82, 83 and 86); Outa v. Okello & 3others, Sup. Ct. Petition 10 of 2014 (paragraph 57); and Obado v. Oyugi & 2others, Sup Ct. Petition No 4 of 2014, (paragraph 122). In Kidero & 5others v. Waititu andothers, Sup. Ct. Petition No. 18 of 2014(Consolidated with Petition No. 20 of 2014) Njoki Ndungu, SCJ in her concurring opinion, made the following apposite remarks (para.236):“The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement aimed at enhancing certainty and predictability in the legal system. The articles of establishment and jurisdiction reveal the Court’s vital essence and the decisions of this Court protect settled anticipations by ensuring that the Constitution is upheld and enforced and that the aspirations of the Kenyan people embodied in a system of constitutional governance are legitimized. The constitutional contours of article 163(7) oblige this Court to settle complex issues of constitutional and legal controversy and to give jurisprudential guidance to the lower courts. In the exercise of our mandate, we determine the constitutional legality of statutes and other political acts to produce judicially-settled principles that consolidate the rule of law and the operation of government, and the political disposition, particularly in the settlement of electoral disputes. As a Court entrusted with the final onus of settling constitutional controversies, one of our principal duties is the enforcement of constitutional norms.”

49. We thus find a basis for arriving at the conclusion that no valid cause has been shown, for this court to exercise its power of review of its past decisions.

(iii) “Declaration of Election Results”: What’s the meaning? 50. The concept of “declaration of election results” was considered and perceived by this court, in the Joho case, as bearing the following signification (paragraphs 72, 77):“‘Declaration’ takes place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County returning centre. Thus the declaration of election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration is depicted in the issuance of the certificate in Form 38 to the winner of the election. This marks the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority…….“Bearing in mind the nature of election petitions, the declared election results, enumerated in the Forms provided, are quantitative, and involve a numerical composition. It would be safe to assume, therefore, that where a candidate was challenging the declared results of an election, a quantitative break down would be a key component in the cause. It must also be ascertainable who the winner, and the loser(s) in an election, are.The certificate in Form 38 declares the winner of the election and terminates the mandate of the returning officer, who acts on behalf of the Commission, shifting the jurisdiction in respect of the electoral process to challenge the results of the election to the election Court. We hold that the certificate in Form 38 comprises the declaration of election results. This declaration sets in motion the time-frame within which to lodge an election petition, and it is hereby so held. Consequently, the provision of section 76 (1) (a) of theElection Actis inconsistent with the provisions of article 87 (2) of theConstitution, as elaborated hereinbefore, and is hereby declared unconstitutional to that extent [emphasis supplied]

“Returning Officer” is a Mere employee? Or a Representative of IEBC? 51. What exactly is the identity of the IEBC ? Article 88 (1) of the Constitution establishes the IEBC, and article 88(4) thus outlines the responsibilities of the IEBC:“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—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(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;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.“(5)The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.”

52. The Elections (General) Regulations, 2012 in regulation 3, provides for the appointment of the Returning Officer by the Commission (IEBC). Under regulation 3(a), the Returning Officer is responsible for conducting elections at the constituency level. The Constitution, in article 88(4) provides that: “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 a Act of Parliament” In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2others, Civil Application No. 5 of 2014, this Court thus determined (paragraph 77):“While we agree with Mr. Muthomi, regarding his contention that section 87 of the Election Act cannot be equated to constitutional provision, we must hasten to add that the Election Act, and the regulations thereunder, are normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and that in interpreting them, a Court of law cannot disengage from the Constitution.”

53. The Election (General) Regulations, 2012 are to be read in conformity with the Constitution. The effect is that, the Returning Officer is the IEBC, when conducting the relevant duties under the Constitution, the Election Act, and the Regulations thereunder.

54. No less relevant is the Independent Electoral and Boundaries Commission Act, 2011. This Act, in section 4, sets out the functions of the IEBC which are for the most part, replicated in article 884(4) of the Constitution. It thus provides for the composition of the Commission (section 5):“The Commission shall consist of a chairperson and eight other members appointed in accordance with article 250(4) of the Constitution and the provisions of this Act.”

55. The IEBC Act also provides for a Secretary to the Commission (section 10), who is appointed pursuant to article 250 (12) of the Constitution. The Secretary is the chief executive officer of the Commission; head of the secretariat; accounting officer of the Commission; custodian of all Commission records; bearer of responsibility for executing decisions of the Commission; officer in charge of assignment of duties and supervision of all employees of the Commission; facilitator, co-ordinator and executor of Commission’s mandate; guarantor of staff compliance with public ethics and values; executor of such other duties as may be assigned by law and by the Commission. Without a doubt, the Secretary is a vital component of the IEBC – indeed, a central part of the IEBC, regardless of not bearing the designation “Commissioner”. section 11 of the Act makes provisions regarding employees of the Commission, who conduct their functions at headquarters, and at the numerous regional offices of IEBC.

56. From the foregoing details regarding IEBC’s operations, it is clear to us that the appellant’s perception of its identity is inappositely limited. We take judicial notice that it would be impractical to expect the Commissioners qua “Commissioners”, to conduct all the functions entrusted to the Commission under article 88 (4) of the Constitution. The secretary, hence, can hardly do without employees entrusted with specified duties. Had it been the case that all such tasks devolved only to “Commissioners”, the consequence would be that all actions routinely taken by the IEBC staff, such as continuous registration of voters, regular revision of voters’ roll, and registration of candidates, would be a nullity in law. There is need to avoid such construction of the Constitution as would be contrary to the public interest . The requisite approach in interpreting article 88 (1) of the Constitution, is one that vindicates the constitutional purposes and objectives, and that fosters good governance, in accordance with the terms of article 259. Good governance in this instance entails ensuring that the constitutional functions of the Commission do not come to a standstill, as is destined to happen if the discharge of such functions were left entirely to the nine Commissioners.

57. In short, as we perceive it, the IEBC comprises the Commissioners, as well as its employees who have been duly authorised. Consequently, and in accordance with the Joho precedent, the Returning Officer, an employee of the IEBC, properly acts on its behalf.

Determination 58. Consequently, it is clear to us that the review application is for disallowing. As a consequence, and in view of the fact that the application departs from normal form, and comes via submissions to a preliminary objection, we would allow the said preliminary objection.

G. Orders 59. This leads us to make appropriate orders as follows:(a)The review application and the petitioner’s submissions to the Preliminary Objection are disallowed.(b)The Preliminary Objection dated May 9, 2014 is allowed.(c)As a consequence of Order No (b) above, and for the avoidance of doubt, this court lacks jurisdiction to entertain the appeal, as it was grounded on a High Court Petition filed contrary to the terms of article 87(2) of the Constitution.(d)The appellant shall bear the costs of this suit.

DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF APRIL 2016. ....................W. M. MUTUNGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT....................K.H. RAWALDEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT....................K. TUNOIJUSTICE OF THE SUPREME COURT....................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT....................J.B. OJWANGJUSTICE OF THE SUPREME COURT....................S. C. WANJALAJUSTICE OF THE SUPREME COURT....................S. N. NDUNGUJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR, SUPREME COURT