[2022] KEHC 11232 (KLR)

Muswahili v Independent Electoral & Boundaries Commission & 3 others; Ethics and Anti-corruption Commission (Interested Party) (Constitutional Petition 4 of 2022) [2022] KEHC 11232 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11232 (KLR)

Republic of Kenya

In the High Court at Vihiga

Constitutional Petition 4 of 2022

PJO Otieno, J

June 13, 2022

IN THE MATTER OF ELIGIBILITY OF CANDIDATES CONTESTING FOR THE POSITION OF GOVERNOR AND DEPUTY GOVERNOR IN VIHIGA COUNTY AND IN THE MATTER OF ARTICLES 73 AND 180 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 13,18,43 OF THE ELECTIONS ACT AND SECTION 10, 38A TO 38I OF THE POLITICAL PARTIES ACT BETWEEN

Between

Evans Ladtema Muswahili

Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Alfred Agoi

2nd Respondent

Mmaitsi Vincent Sakwa

3rd Respondent

George Khaniri

4th Respondent

and

Ethics and Anti-corruption Commission

Interested Party

Ruling

The Applications 1. The court was moved to consider and determine a petition seeking orders that disqualification of a candidate is not a ground for substitution of a candidate under section 18 of the Elections Act, an order that the 2nd respondent having failed to substitute the deputy within the prescribed time is ineligible to participate at the elections and lastly that the nomination certificates for the 4th and 5th respondents issued by the 1st respondent to vie for the gubernatorial seat in Vihiga be quashed by an order of certiorari on the basis that the two belong to two different partied.

2. When served with the petition and an application for conservatory orders, the 1st respondent as well as the 4th and 5th respondent, filed separate notices of preliminary objections contesting the jurisdiction to entertain the matter. The notices are fashioned thus: -By the first is the 1st respondent;a.The honourable court lacks the requisite jurisdiction to hear and determine this matter.b.The application and the suit offend the provisions of article 88(4) (e) of the Constitution of Kenya and section 74(1) and (2) of the Elections Act.c.The petition is therefore an abuse of the court process.”By the 4th and 5th respondentsa.The petitioners petition dated June 6, 2022 before this honourable court is a non-starter as this court does not have the requisite jurisdiction to hear this case and/or petition in line with the mandatory provisions of section 74(1) of the Elections Act no 24 of 2011. b.That the petitioners petition is fatally defective, bad in law and an abuse of court process and should therefore be dismissed with costs.”

3. Due to time constraints, the preliminary objections were argued orally by the parties.

1st Respondent’s Submissions 4. Ms Shijenje holding brief for Kibet for the 1st respondent argued that this court lacks the jurisdiction to determine this petition for the reason that article 88(4)(e) of the Constitution as read with section 74(1) and (2) of the Elections Act establishes a dispute resolution mechanism with the 1st respondent’s body. She submitted that it is the commission which is responsible for hearing and determining any disputes relating to nominations and to determine such disputes within 7 days after the dispute is lodged. She argued that the petition thus contravenes the doctrine of exhaustion and cited to the court the decision in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others[2015] eKLR to buttress such position. She therefore prayed that the preliminary objection be upheld and the petition struck out.

4th and 5th Respondent’s Submissions 5. Mr Chwita advocate for the 4th and 5th respondent associated himself with the submissions of Ms Shijenje and further submitted that the jurisdiction of this court on matters elections only arises after declaration of results. He referred the court to the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR and Yusuf Gitau Abdallah v Building Centre (K) Ltd & 4 others [2014] eKLR for the proposition that it is the 1st respondent, and not the court, that is mandated to receive and determine all pre- election disputes, including nomination disputes.

6. Mr Nabibia h/b for Cherono and asserting to equally appear for the 4th and 5th respondent, distinctly from Mr Chitwa, argued that the petition was premature since the petitioner has not attempted to have this matter resolved by the IEBC dispute resolution committee. He referred the court to the case of International Centre for Policy & Conflict v Kamlesh Mansukhlal Damji Pattni & 5 others [2013] eKLR and Francis Gitau Parsimei & 2 others v National Alliance Party & 4 others [2012] eKLR on the compelling nature of the doctrine of exhaustion.

Petitioner’s Submissions 7. Mr Malenya for the petitioner in opposing the notices preliminary objection submitted that the petition has been addressed as a nomination dispute which it is not. The petitioner contends that the petition strictly seeks to address two issues namely; i) the eligibility and qualification of candidates pertaining to the governor and the deputy governor respectively and; ii) Whether candidates who do not adhere to timelines are eligible to participate in elections. It is alleged that the 2nd respondent submitted the name of his running mate, the 3rd respondent herein, yet it had been established that the 3rd respondent was not eligible to contest as a deputy governor. He referred the court to the case of Clement Kungu Waibara v Annie Wanjiku Kibeh & another [2020] eKLR where the court found that the question of eligibility was not purely electoral. He further submitted that the doctrine of exhaustion has exceptions where the body doesn’t exist or is not able to determine the dispute.

Issues 8. Having considered the notices aforesaid together with submissions offered by the parties the court identifies the sole issue for determination for determination to be whether it has the the jurisdiction to entertain this petition in so far as it questions the nomination of the 2nd to 5th respondents to contest the gubernatorial elections for Vihiga County

Analysis 9. The question of Jurisdiction, being everything without which a court has no power to make one more step, is a threshold issue and when raised must be dealt with before hand and prior to any other business in the matter. Granted that the constitution gives to the High court very wide and unlimited jurisdiction, that is not to say that it is the only forum for dispute resolution. The court over and above having original and appellate jurisdiction in all civil matters, and I am reminded that even constitutional litigation takes the face of civil litigation, also has supervisory jurisdiction over tribunals and bodies exercising judicial and quasi-judicial duties1. 1Article 165(3), (6) and (7)

10. The dispute disclosed in this petition concerns the 1st respondent accepting nomination papers from the 2nd and 3rd respondent for the positions of governor and deputy governor respectively for Vihiga county outside the cut-off time and; whether the 5th respondent being a member of KANU is ineligible to be the deputy of a UDP nominee since the 4th respondent is not a candidate for a coalition party but a candidate of UDP party.

11. To determine the objections, the court must ascertain what the dispute is for the court appreciates that the constitution has assigned the mandate of resolution of electoral disputes to different organs for reason every organ must keep to its lane to avoid overlapping on the mandate of others or just usurping and abrogating to itself that which belong to another organ. My perusal of the papers filed leads me to the determination that the issues is purely that of nomination. That conclusion leads me to the next question; whose jurisdiction is it to handle nomination disputes?

12. The Constitution of Kenya, 2010 clothes IEBC with the jurisdiction to hear and determine pre-election disputes under article 88 (4) (e) which stipulates: -“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……………………………………..(b)…………………………………….(c)…………………………………….(d)……………………………………(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;”

13. Section 74 (1) of the Elections Act, No 24 of 2011, a statute enacted pursuant to article 82 of the Constitution reiterates the dictates of article 82 and provides that, pursuant to article 88 (4) (e) of the Constitution, the commission shall be responsible for 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.”

14. The subject petition is founded in part on section 18 of the Elections Act which requires that when a deputy governor is substituted, the names ought to be submitted to IEBC before close of the time given for presentation of nomination papers to the 1st respondent. The petitioner here alleges that the 2nd respondent’s choice of a deputy having been disqualified the 1st respondent allowed him to substitute that disqualified deputy with another yet disqualification is not a ground for substitution. Against the 4th and 5th respondents it is alleged that being members of different political parties they cannot run together.

15. The jurisdiction of the 1st respondent under article 88(4)(e) of the Constitution and section 74(1) of the Elections Act, is not limited to the determination pre-election disputes to nominations alone but includes disputes relating to or arising from nominations. The issues raised by this petition relate to and arise from the nomination of the 2nd and 3rd respondent to run for the position of governor and deputy governor in Vihiga County on one hand and the 4th and 5th respondent to run for the position of governor and deputy governor in Vihiga County on the other.

16. It has been said by the petitioners that the 1st respondent has flouted the provisions of section 18 of the Elections Act in issuing certificates to the 2nd and 3rd respondent to vie. This court is cognizant of the significance of obedience of rules stipulated in law and refers to the case of Justus Kariuki Mate & Anor vs Martin Nyaga Wambora& Anor (2014) eKLR for the proposition of the law that the duty to obey the law by all individuals and institutions is cardinal in the maintenance of law and order and due administration of justice. That may as well be the binding law but it is also the law that the constitution is the wish of Kenyans and the statutes are enacted on behalf of the citizen to regulate their lives and activities and bind them so that the country remains in the chosen path to by governed by the rule of law. That is the understanding and rationale for the principle or doctrine of exhaustion. Way before the new constitution was promulgated, the then apex court in the country by the decision in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, had laid down the commanding application of doctrine in the following words:-“where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

17. This court being bound by that decision is not in doubt that where the Constitution having established dispute resolution mechanism and vested the task on the 1st respondent that mechanism ought to be strictly followed and exhausted before the party can approached the court. It would be an action in rubbishing the legislative mandate of parliament to ignore a clear provision of the law establishing a dispute resolution mechanism if the court was to countenance parties overlooking the mechanism.

18. In a long line of authorities, the superior courts in Kenya, from the high court to the Supreme Court, have remained firm that even though the High court has wide original jurisdiction in both civil and criminal matters, that jurisdiction does not extend to permit the usurpation of the powers and jurisdictions of other bodies or organs. The determination of pre-election disputes ought to be in line with article 88 (4) (e) of the Constitution and section 74(1) of the Elections Act. This was the holding of Lenaola J (as he then was) in Isaiah Gichu Ndirangu & 2 Others v Independent Electoral and Boundaries Commission & 4 othersConstitutional and Human Rights Division Petition No 83 of 201 [2016] eKLR, where he held;“I agree that indeed this court has unlimited jurisdiction in civil and criminal matters and further the jurisdiction to determine the Constitutionality of anything alleged to have been done under the Constitution. I also appreciate that article 258 of the Constitution grants every person the right to institute court proceedings, claiming that the Constitution has been contravened, or is threatened with contravention. I however take the view that parliament in its wisdom, being well aware of the existence of the judicial arm of the government, enacted statutes that made provisions for settling disputes arising from or relating to nominations and elections. In the said enactments, the legislature anticipated the existence of such disputes and that is why it created necessary and specialized dispute resolution fora.I take the further view that the existence of articles 165 and 258 of the Constitution is not a substitute or a means of excluding such other dispute resolution organs and agencies from exercising their statutory duties.”

19. Even though the petitioners have argued that matters eligibility and qualification fall within the jurisdiction of an election court, the pleadings do not bring out a clear question of qualifications for the seat and they seem not to have given any regard to Regulation 13(2) of the Elections (General) Regulations 2012 vests the commission, IEBC, with powers to determine if a candidate is eligible and qualified to vie and if not, to reject such candidate. It stipulates that the commission shall reject a candidate submitted by a political party for any elective post if the candidate is not qualified or eligible for election under the Constitution, the Act or any other written law. That provision came for interpretation before Mabeya J in Josiah Taraiya Kipelian Ole Kores v Dr David Ole Nkedienye & 3 others [2013] eKLR who in declining to assume jurisdiction and address eligibility and qualification of a candidate held that the Constitution has set out dispute resolution mechanism prior to the election, which mechanisms ought to first be invoked and exhausted.

20. Further up the judicial ladder, the apex court was confronted with the subject and in a decision that reads like a bench book for nomination disputes, the court in Sammy Ndungu Waity vs IEBC and others (2019) eKLR, said, not in very few words, at paragraphs 60 all the way to paragraph 69, that the original jurisdiction to determine pre-election disputes must be left for the 1st respondent and other statutory organs the law vests with the power and that the High court would only intervene by way of supervision to correct any error or impropriety in process and outcomes after the other bodies have exhausted their mandate. This court associates itself with those decisions not only as persuasive and equally binding but also on the appreciation that the court must remain on its lane and shy from being seen to abrogate to itself jurisdiction vested on other organs.

21. On the submissions that the doctrine of exhaustion has its exceptions, none of those exceptions was demonstrated to apply here. There was nothing to show that the mandated forum was in equipped of unable to discharge mandate or that the remedy would be inefficacious. Parties are reminded of the words of the court in Diana Kethi Kilonzo vs IEBC and others (2013) eKLR that organs created by the constitution and tasked to perform clear mandates must be given the leeway such mandates to allow them grow. Ultimately, I find that the dispute here is limited to the process of nomination of candidates and is thus a preserve of the 1st respondent to render a determination and that if this court were to entertain the petition, it would caste itself to be usurping the jurisdiction of the 1st respondent.

22. Accordingly, and flowing from the foregoing analysis, the two notices of preliminary objections are well merited and are thus allowed with the result that the petition is thus struck out with an order that each party shall bear own costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 13TH DAY OF JUNE 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:K’Ombwayo for the PetitionerMr. Okali for the 1st respondentMr. Chitwa with Mr. Nchibia for the 4th and 5th respondentsNo appearance for the 2nd and 3rd Respondents and Interested PartyCourt Assistant: Kulubi