[2013] KEHC 5186 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

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MUSA TIPAPE NAINI ........................................................................................................PETITIONER

AND

TOM MBOYA............................................................................................................1ST RESPONDENT

THE INDEPENDENT ELECTORALAND BOUNDARIES COMMISSION..........2ND RESPONDENT

COMMISSION ON HIGHER EDUCATION.........................................................3RD RESPONDENT

JOSIAH TARAIYA KIPELIAN OLE KORES........................................................4TH RESPONDENT

JUDGMENT

1. The petitioner herein challenges the nomination of the 4th respondent Joash Tarayia Kiraiya Ole Kores as a candidate for the position of County Governor for Kajiado County on a National Alliance Party ticket.

2. Although several grounds have been advanced, we shall limit our inquiry to the qualification of the candidate, that is, whether the 4th respondent had the requisite qualification to be eligible for nomination. It is the petitioner’s contention that the candidate does not have a genuine degree from Universidad Empressrial Del Costa Rica which University is not recognised in Kenya.

3. When the 4th respondent presented his papers to the returning officer, he presented a letter dated 11th September 2012 from the Commission for Higher Education (“CHE”) which states as follows;

11th September 2012

Founder and Group Chairman

DALC Education Trust

P O Box 5172 – 00506

Nyayo Stadium

Nairobi

ACCREDITATION STATUS OF UNIVERSIDAD EMPRESSARIAL DE COSTA RICA

Thank you for your request on above subject matter dated 26th August 2012.

Universidad Empressarial De Costa Rica (UNEM) that is Business University of Costs Rica (BUCR) is an accredited University and recognised by the Commission for Higher Education. Indeed it is in the International data base at the Commission as an Accredited University namely.

·International handbook of Universities Vol 1 22nd Edition UNESCO’S international Association of Universities and

·World List of Universalities 25th Edition, UNESCO.

Yours faithfully,

PROF EVERETT M STANDA, MBS

COMMISSION SECRETARY/CHIEF EXECUTIVE OFFICER

4. From the depositions before us the letter was in response to an inquiry from DALC, in their letter dated 26th August 2012 which was titled, “Accreditation status of Universidad Impressarial de Costa Rica”and is stated, “Kindly confirm to us the accreditation status of the above university, which wishes to enter into a collaboration with us”

5. We dealt with a similar issue in the case of Daniel Katelng’o Kiptunen v Republic & OthersNairobi Petition No. 24 of 2013 (Unreported) wherein we stated that in our view, this matter must be determined by reference to the terms of 180and193. Article 180(2) provides that“to be eligible for election as county governor, a person must be eligible for election as a member of the county assembly.” Article 193 (1) states that “a person is eligible for election as a member of a county assembly of the person (b) satisfies any education moral and ethical requirements prescribed by this Constitution or an Act of Parliament.”

6. Section 22(1) of the Election Act provides;

22. (1) A person may be nominated as a candidate for an election under this Act only if that person—

(a) is qualified to be elected to that office under the Constitution and this Act; and

(b) holds a post secondary school qualification recognized in Kenya.

7. The relevant provisions of the Act require recognition and therefore, regulation 47 of the Election (General) Regulations, 2012 must be read subject to the Act which provides for “recognition”.

8. As we stated in the Daniel Taleng’o Kiptunen Case (Supra), the relevant institution charged with recognising degrees is the CHE which conducts this exercise by reference to accreditation. Section 5 of the Universities Act, 2012 mandates the CHE to recognise and equate degrees awarded by foreign universities and institutions in accordance with the standards and guidelines set by it from time to time. Section 5(1)(g) of the Universities Act, 2012 mandate CHE to recognise and equate degrees awarded by foreign universities and institutions in accordance with the Standards and guidelines set by it from time to time.

9. It is apparent that that letter dated 11th September 2012 was in response to a letter of inquiry not from the candidate but from DALC, it was not a letter contemplated under regulation 47 of the Election (General) Regulations, 2012.

10. According to the replying affidavit sworn by Prof. Florence Lenga of CHE, the CHE wrote to the 4th respondent the letter dated 22nd January 2012 on the following terms;

22/01/2013

Joash T. O. Kores

P O Box 220

Kajiado

RE: RECOGNITION OF QUALIFICATIONS:

JOASH T O KORES

Thank you for your application dated 21st January 2013, requesting for recognition of the degree of Bachelor of Business Administration awarded by Universidad Empresarial de Costa RicA.

We have established that the degree of bachelor of Business Administration was obtained at the Digital Advisory Learning Centre (DALC), Nairobi and NOT at the Universidad Empresarial de Costa Rica. The Commission or University Education (CUE) has NOT granted DALC authority to collaborate with Universidad Impresarial de Costa Rica according to Universities Act 2012.

The degree of Bachelor of Business Administration (BBA) is therefore NOT recognised by the Commission.

PROF DAVID K SOME

COMMISSION SECRETARY/CHIEF EXECUTIVE OFFICER

11. This letter is consistent with the authority of the CHE and it deals with the specific inquiry/request by the 4th respondent for recognition. It appears that the Retuning Officer did not have this letter at hand when he made the decision to accept his papers and declare him duly nominated. In any event the letter of 11th September 2012 was not one of ‘recognition’ but one dealing with the ‘accreditation status’ of the Costa Rican University. It was irrelevant for purposes of the election. We also note that the 4th respondent either did not disclose or concealed the existence of this document from the Returning Officer.

12. We think this issue is sufficient to dispose of this matter. Before we turn to the relief we should grant, we note with concern that the Chief Executive Officer of the IEBC purported to issue a letter dated 31st January 2013 titled, ‘Clearance of Josiah Turaiya Ole Kores.’ We think that this conduct is to be deprecated. The returning officer exercises quasi judicial authority and he is not subject to the direction of any person hence it was improper for him to act of the letter addressed by the Chief Executive Officer or anyone else. He is required to direct his mind to the papers presented to him and make a decision. The decision of the returning officer is then subject of appeal to the IEBC Dispute Resolution Committee if there is a dispute or a party is dissatisfied with it.

13. The High Court in a proper case has authority to intervene in the decision of the returning officer as he is subject to our supervisory jurisdiction. (See Robert Akumu Asembo vs Political Parties Tribunal)Nairobi Misc. Appl. 62 of 2013 (Unreported)). In view of the non-disclosure of 4th respondent’s recognition certificate issued by the Commission for Higher Education we order as follows;

(i)We quash the certificate of the returning officer dated 1st February 2013 forthwith.

(ii)We direct the Returning Officer to reconsider whether to accept or reject the 4th respondent’s nomination papers in light of the Letter of Recognition issued to Joash T O Kores dated 22nd January 2013 by the Commission for Higher Education.

(iii)We order the 4th respondent to pay the 3rd respondent’s costs.

DatedandDelivered at Nairobithis 7th February 2013.

D.S. MAJANJA

JUDGE

E.K.O. OGOLA

JUDGE

G. V. ODUNGA

JUDGE