[2022] KEHC 14125 (KLR)

Musyoki v Independent Electoral Boundaries Commission (IEBC) & 3 others; Persons with Disabilities – Kwale County (List Annexed) (Interested Party) (Constitutional Petition E048 of 2022) [2022] KEHC 14125 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14125 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E048 of 2022

OA Sewe, J

October 6, 2022

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 22, 27, 54, 90, 97(1) (c), 100, 177(1) (c) OF THE CONSTITUTION, 2010 AND IN THE MATTER OF SECTION 34 OF THE ELECTIONS ACT (N0. 24 OF 2011) AND IN THE MATTER OF THE ELECTION (GENERAL) REGULATIONS (L.N 128 OF 2012 AND L.N 72 OF 2012) AND IN THE MATTER OF ELECTIONS (PARTY PRIMARIES AND PARTY LISTS) REGULATIONS 2017 (L.N 69 OF 2017 AND IN THE MATTER OF NOMINATED MEMBERS TO THE COUNTY ASSEMBLY

Between

Lydia Kanini Musyoki

Petitioner

and

Independent Electoral Boundaries Commission (IEBC)

1st Respondent

County Assembly of Kwale

2nd Respondent

United Democratic Alliance (UDA)

3rd Respondent

Agustine Ndegwa

4th Respondent

and

Persons with Disabilities – Kwale County (List Annexed)

Interested Party

Ruling

1. The notice of motion dated September 20, 2022 was filed herein by the petitioner under sections 1A, 1B, 3 and 3A of the Civil Procedure Act; order 40 rules 1 and 2 and order 51 of the Civil Procedure Rules, for orders that:(a)Spent(b)An interlocutory injunction be granted restraining the respondents whether by themselves, their servants, workers, agents and/or employees from performing the swearing in ceremony of the nominated members of the County Assembly of Kwale scheduled to take place on September 21, 2022 pending the hearing and determination of the application;(c)The court be pleased to issue an order of mandatory injunction directed to the 2nd respondent to forthwith cease from conducting any house business pending the hearing and determination of the application;(d)The court be pleased to issue an order of mandatory injunction directed to the 2nd respondent to forthwith cease from conducting any house business pending the hearing and determination of this Petition;(e)The costs of the application be provided for.

2. The application was premised on the grounds that the petitioner was nominated by the 3rd respondent as a member of the County Assembly of Kwale under Membership No UDA80164: PWD; and that she was shocked to discover that she was not among the nominees gazetted vide Gazette Notice No 186 dated September 9, 2022. She drew the attention of the court to the fact that, one male by the name Augustine Ndegwa, was nominated as a female in the gazetted list; and that no provision was made for persons with disabilities, in gross violation of the Constitution. The petitioner thus averred that, unless her application is granted, the respondents would proceed with the swearing in of the nominated members to her detriment.

3. The application was supported by the petitioner’s own affidavit, sworn on September 20, 2022 to which she annexed copies of her UDA membership card, nomination form, and list of representatives of persons with disabilities, Kwale County. Also annexed to the petitioner’s supporting affidavit was a copy of the Kenya Gazette for September 9, 2022 in respect of the marginalized list for Kwale County, among others. It confirms thatPWDs were entirely left out of the marginalized list. Thus, the petitioner complained that the conduct of business by the 2nd respondent without her participation will substantially affect her welfare and that of other persons with disabilities; and that unless the orders sought are granted, she will suffer substantial loss.

4. The application was duly served on the respondents and an affidavit of service filed to that effect on September 22, 2022. Hence, the application proceeded ex parte on September 22, 2022 at the instance of counsel for the petitioner. Counsel further disclosed, from the bar, that the swearing in took place as scheduled on September 21, 2022. He thereupon abandoned prayer 2 of the notice of motion and urged for the issuance of a mandatory injunction in term of prayers 3 and 4 thereof. Consequently, the issue that presents itself for determination is whether, in the circumstances, the petitioner is entitled to “…an order of mandatory injunction directed to the 2nd respondent to forthwith cease from conducting any house business pending hearing and determination of the petition...” as sought by the petitioner.

5. In the caseKenya Breweries Limited & another v Washington O Okeyo[2002] eKLR the Court of Appeal had the following to say in respect of the principles applicable to the issuance of mandatory injunction:“The test whether to grant a mandatory injunction or not is correctly stated in vol 24 Halsbury’s Laws of England 4th edn para 948 which reads:“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff…a mandatory injunction will be granted on an interlocutory application”.Also in Locabail International Finance Ltd v Agroexport and others [1986] 1 All ER 901 at pg 901 it was stated:-"A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”The principles of law enunciated by these decisions have received full approval by the courts within our jurisdiction. See the cases of Belle Maison Limited vs Yaya Towers Limited HCCC 2225 of 1992, per Bosire, J (as he then was) and The Ripples Limited vs Kamau Mucuha HCCC No 4522 1992 per Mwera, J."

6. Moreover, for an injunction to be granted, the petitioner must establish that she has aprima facie case. A prima faciecase was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR as follows:“…a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter…”

7. Needless to mention that under article 54 (2) of the Constitution, it is a requirement that at least 5% of members in elective and appointive bodies be persons with disabilities. Further article 90 of the Constitution, requires that party lists, as provided for under article 177 (1) (b) and (c) with respect to a seat for the member of county assembly, be proportional and should comply with article 81(b) and article 100 of the Constitution. In this case, the petitioner has demonstrated that, at all material times, she was a paid up member of the UDA party; and that she is a person living with disabilities. She further demonstrated that, as per the Gazette Notice No 186 dated September 9, 2022, no slot was given to the PWDs in Kwale County Assembly.

8. The foregoing notwithstanding, I am not convinced that any ‘special circumstances’ have been shown by the petitioner to warrant the grant of mandatory injunction in the manner sought by her, whose net effect would be to restrain the County Assembly of Kwale from discharging what is otherwise a constitutional mandate. Indeed, in the case of Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR the Supreme Court made it clear that:“(84)…the integrity of court orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the state. Such restraint, in the context of express mandate allocation under Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of government responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practise from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case.”

9. It is my view therefore that the orders sought are not warranted; and that justice would best be served by prioritizing the expeditious hearing and determination of the petition instead. In the result, the application dated September 20, 2022 is hereby dismissed with no order as to costs.It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF OCTOBER 2022OLGA SEWEJUDGE