[2022] KEHC 13678 (KLR)

Mutabi v Thiriku & 4 others (Petition E008 of 2022) [2022] KEHC 13678 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13678 (KLR)

Republic of Kenya

In the High Court at Embu

Petition E008 of 2022

LM Njuguna, J

October 12, 2022

Between

James Gitonga Mutabi

Petitioner

and

Josiah Muriithi Thiriku

1st Respondent

Clerk, County Assembly of Embu

2nd Respondent

Independent Electoral & Boundaries Commission

3rd Respondent

Ethics & Anti-Corruption Commission

4th Respondent

Embu County Government

5th Respondent

Ruling

1. This court having been moved by way of petition dated September 19, 2021, the proposed interested party filed a notice of motion dated September 21, 2022 seeking to be enjoined as an interested party in the petition. The application is premised on the grounds on its face and it’s supported by the annexed affidavit sworn by the proposed interested party.

2. The 2nd respondent filed a preliminary objection dated the September 26, 2022 against the interested party’s application and the petition while the 3rd respondent filed grounds of opposition also dated September 26, 2022.

3. The preliminary objection is based on the grounds that the petition herein is a dispute relating to the election of the 1st respondent as a speaker of the County Assembly of Embu and as such, the petitioner is challenging the eligibility and nomination of the 1st respondent, to contest for the election for the position of speaker of County Assembly of Embu. That in reference to Article 88 (4) (e) of the Constitution, the 3rd respondent is conferred with the jurisdiction to determine the same and hence this court lacks jurisdiction to entertain the matter herein. The 2nd respondent thus relied on the Supreme Court Petition no. 32 of 2014, Justus Kariuki Mate and others v Martin Nyaga Wambora & others [2017] eKLR in support of its objection.

4. In a nut shell, the petitioner’s case is premised on the fact that the 2nd respondent declared a vacancy in the office of the speaker of the County Assembly of Embu following which, the 1st respondent submitted his nomination papers seeking to contest in the said election. That the 1st respondent had not resigned as a civil servant from his position as the Director of Trade and Tourism employed by the 5th respondent, at least six months to the elections as required under Section 43(5) of the Elections Act and therefore, the nomination of the 1st respondent was in violation of requirements of the said provision. Reliance was placed on the case of Langat v Independent Electoral and Boundaries Commission; Attorney General & 4 Others [2022] KEHC 11518. The petitioner thus prayed that the orders sought herein be allowed.

5. The interested party on the other hand sought to be enjoined in the petition herein for the reason that he had submitted his application papers to the 2nd respondent for the position of speaker of the County Assembly; that as one of the two persons nominated to contest for the position of the speaker of the County Assembly of Embu, he had a personal identifiable and proximate interest/stake and hence, he ought to be enjoined as a party to the petition. That he stands to be prejudiced in case of non-joinder having qualified for the position as he shall have been deprived of the chance to articulate his interest.

6. When the matter came up for hearing, the parties took directions to dispose the preliminary objection and the application seeking for enjoinment of the proposed interested party, by way of written submissions and which directions were complied with.

7. The petitioner submitted that on the September 20, 2022, he filed the Petition herein together with a Notice of Motion seeking reliefs as enunciated on the face of the notice of the motion and the petition. In his opinion, the Preliminary Objection by the 2nd respondent crystalized into one main ground which is the jurisdiction of this court to hear and determine the issues raised in the Petition. He submitted that the Petition was filed to challenge the 1st respondent's eligibility to contest for election for the position of Speaker, County Assembly of Embu, on the grounds that he had not resigned as a public servant within the time stipulated under Section 43 (5) of the Elections Act and therefore, the orders sought in the Petition are meant to bar the 1st Respondent from contesting in the election.

8. The petitioner avers that this court has jurisdiction to hear and determine matters relating to pre-election disputes as was settled in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others; Ahmed Ali Muktar (Interested Party)[2019] eKLR. He further noted that the election of the speaker took place even after the court had already issued orders barring the 2nd Respondent from including the 1st Respondent in the ballot, which he classified as a “tragedy” as envisioned by the Supreme Court in Mahamud case.

9. The proposed interested party submitted that the 1st, 3rd, 4th and 5th respondents having failed to file their responses to the motion despite being served with the application herein, the same should be allowed. In reference to the preliminary objection, the proposed interested party submitted that, it is trite that a preliminary objection, must speak to specific points of law that arise from the pleadings complained of. That his prayer is to be enjoined in the instant proceeding and in a plain reading of the preliminary objection, the same does not disclose any legal ground that can be considered as a preliminary objection as enunciated in the case of Mukhisa Biscuits Manufacturing Company Limited v West End Distributors(1969) EA 696. Further that, he is not the one who filed the petition and all he is seeking is an opportunity to participate in the hearing and determination of the substratum of the petitioner’s case. That, all that he has set out demonstrates that he has a legal and identifiable right to warrant his joinder. Reliance was placed on Article 48 of the Constitution as read with Rules 3, 4, 5 and 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms, Practice Rules) 2013. It was his case that if he is not enjoined in the matter herein, then he stands to suffer great prejudice by being denied the opportunity to participate in the proceedings that substantially touch on his rights arising from the legitimate expectation in the subject. He thus relied on the case of Communications Commission of Kenya & 4 Others v Royal Media Limited and 7 others [2014] eKLR. In the end, it was prayed that the application dated September 21, 2022 be allowed and the Preliminary objection be dismissed.

10. The 2nd respondent submitted that the subject matter of the Petition is both a nomination and an election dispute. That the application for joinder is twofold in that firstly, it is a dispute arising from the nomination of the 1st respondent to vie for the position of the speaker, County Assembly of Embu and secondly, a dispute arising from the election for the said position held on September 21, 2022 during which, the 1st respondent was elected to the said position. That the subject matter of the petition herein is a challenge to the nomination of the 1st respondent to contest for the position of the speaker of the County Assembly of Embu.

11. It was its case that this court has been invited to determine the overarching question on whether or not the 1st respondent was properly nominated and elected to the Office of Speaker, and the same was submitted that this court has no jurisdiction to hear the same. It was its case that, given that this court is not an Election Court in reference to Section 75 of the Elections Act, 2011, it has no jurisdiction to hear and determine the dispute disclosed in the petition herein. It was its case that Section 75 of the Elections Act applies to the election of a speaker under Section 21 of the Elections Act, as equally as it applies to all other members of the county assembly in regard to the jurisdiction to overturn election of a member thereof. That this court should therefore defer to the correct court for hearing and determination of the dispute herein. Reliance was placed on the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR.

12. It was further submitted that the undisputed and manifest grievance by the petitioner is his faulting of the 2nd and the 3rd respondents for clearing the 1st respondent to contest for the said elective position of speaker. That the petitioner ought to have filed its grievance in the first instance with the internal Dispute Resolution Mechanism provided for by the IEBC for resolution of the apparent nomination dispute and therefore, the proceedings before this court are premature for lack of exhaustion of the said prescribed statutory mechanism. The 2nd respondent inter alia relied on the cases of David Ramogi & 4 others v The Cabinet Secretary, Ministry of energy & Petroleum & 7others [2017] eKLR and In the matter of the Mui Coal Basin Local Community [2015] eKLR to support its position. Further that, the law stipulates that the election of the speaker must be done in the first sitting of the County Assembly after a general election. That without a speaker, a county assembly cannot conduct business and which makes it necessary and mandatory that the county speaker be elected in the first sitting of the assembly otherwise its entire operations and workings would be frustrated by the absence of a duly elected speaker. Reliance in reference to this was placed on the case of Supreme Court Petition No. 32 of 2014 Justus Kariuki Mate& Martin Nyaga Wambora & another [2017] eKLR. In the end, it was prayed that the preliminary objection herein be allowed and the petition be dismissed with costs.

13. The 3rd respondent submitted in support of the preliminary objection that, pursuant to Article 88 (4) (e) of the Constitution, Section 74 of the Elections Act and section 4 of the Independent Electoral and Boundaries Commission Act (IEBC) the 3rd respondent is responsible for settlement of all electoral disputes including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of elections results. That under Rule 13 as read with Rule 3 of the Rules of Procedure on Settlement of Disputes promulgated under the Elections Act, is a stipulation that a person aggrieved by the decision of a returning officer, may appeal such decision to the Commission (the 3rd respondent herein). It was submitted that the petitioner is aggrieved by the decision of the 3rd respondent through the County Returning Officer in clearing the 1st respondent to contest the election of the speaker of the County Assembly of Embu.

14. Further, it submitted that this court has been called upon to determine whether the 2nd respondent’s preliminary objection in relation to the 1st respondent’s eligibility for election as speaker of the County Assembly of Embu qualifies as an election dispute as contemplated in article 88(4)(e) of the Constitution, Section 74 of the Elections Act, Section 4 of theIEBCActand Rule 3, 13 of the Rules of Procedure on Settlement of Disputes promulgated under the Elections Act. The 3rd respondent in support of his submissions relied on the case of Mutuku & Another v The Independent Electoral and Boundaries Commission & 2 others ( Constitutional Petition E007 of 2022) [2022] KEHC 12393 (KLR). That an election dispute as contemplated under Article 88 (4) (e ) of the constitution is connected with, or related to elections, and in this context, the election of a speaker of a county assembly including disputes relating to the eligibility of the election of the speaker. That election is a process and as such, any dispute arising therefrom is a dispute to be determined within the ambit of Article 88(4) (e) of the Constitution, Section 74 of the Elections Act, Section 4 of the IEBC Act and Rule 3, 13 of the Rules of Procedure on Settlement of Disputes under the Elections Act. Further, the 3rd respondent relied on the case of the Speaker of National Assembly v Karume (as quoted in Mutuku & another v The Independent Electoral and Boundaries Commission & 2 others (supra) in reiterating that this court is divested of jurisdiction on account of the petitioner’s failure to exhaust the said dispute resolution mechanism and as such, the petition herein should be dismissed with costs.

15. The Court has carefully read and considered the preliminary objection, the written submissions by the parties and finds that the issue for determination is whether the notice of preliminary objection is merited.

16. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection where their Lordships observed thus:“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.In the same case Sir Charles Newbold, P. stated:“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.

17. An objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. Indeed the locus classicus case on the question of jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S”(supra) where the Court held:“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

18. In my humble understanding and from a reading of the petition herein, the petition is hinged on the allegation that the 1st respondent’s eligibility to be nominated as a speaker was marred by the fact that he had not resigned as a public servant within the stipulated time under Section 43(5) of the Elections Act. Thus, the orders sought herein are meant to bar the 1st respondent from contesting in the said election as such, and further, the purported election of the 1st respondent to be quashed by the court. In my view, therefore, this is a pre-election dispute in relation to the nomination and thereafter, the election of the 1st respondent as a speaker of the County Assembly of Embu.

19. As such, it is clear that what is being challenged in this petition is an action emanating from the nomination process of the 1st respondent to vie for the position of the speaker.

20. The 3rd respondent has submitted that although this Court under Article 165 of Constitution has an appellate jurisdiction to hear and determine an appeal from the IEBC, the pleadings have not been presented before this Court as an appeal. In regards to the averment, this court is of the view that in determining the validity of nomination and the subsequent election of the 1st respondent, the Court is being called upon to interrogate the whole electoral process and outcome culminating in the decision to elect the 1st respondent as the speaker of the County Assembly of Embu and the purported clearance of the said party by the 3rd respondent. [See Kennedy Moki v Rachel Kaki Nyamai & 2others Election Petition No. 4 of 2018].

21. The jurisdiction of the High Court to adjudicate on matters of and concerning the Constitution is wide. In relation to the petition before us, Article 165(3) provides, in part, as follows:165(3)Subject to clause (5), the High Court shall have-(a)------------(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)--------------(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of (i) the question whether any law is inconsistent with or in contravention of this constitution.

22. A reading of this Article confirms the petitioner’s position that this court has unlimited jurisdiction in both criminal and civil cases. While this court takes cognizance of this fact, the issue before it is whether the court can grant the reliefs sought herein.

23. My understanding of the same is that the jurisdiction of the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution is not lost in election matters simply because an election has taken place. That jurisdiction must always be retained in order to uphold and preserve the authority of the Constitution, in the event of the occurrence of what the Supreme Court termed as “certain tragedies”. [See Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 Others Ahmed Ali Mukhtar (Interested Party) (2019) eKLR.

24. It was submitted that the petitioner has not exhausted the existing alternative remedies. The argument is based on the fact that despite the above provisions of Article 165(3) (6), the petitioner chose not to utilize the avenue provided in Article 88(4) by moving the 3rd respondent through its Dispute Resolution Committee for resolving any disputes arising from nominations thus, failing to exploit the possible avenues to solve the dispute herein before approaching this court

25. This process is underpinned by Article 88(4)(e) and Section 74 of the Elections Act which provide as follows:88(4)The Commission is 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 and, in particular, for—(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.

26. The aforesaid Article is restated in Section 74(1) of the Elections Act as follows:74(1)Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to and arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.

27. The aforesaid provisions and the primacy of the mandate of the IEBC to resolve pre-election disputes has been the subject of consideration by the Supreme Court. In Hon. Mohamed Abdi Mohamud v Ahmed Abdullahi andothers SCK Pet. No 7 of 2018 [2019] eKLR, the Supreme Court affirmed the jurisdiction of IEBC under Article 88(4)(e) as follows:(68)So as to ensure that Article 88(4)(e) of the Constitution is not rendered inoperable, while at the same time preserving the efficacy and functionality of an election court under article 105 of the Constitution, the court developed the following principles:i.all pre-election disputes, including those relating to or arising from nominations, should be brought for resolution to the IEBC or PPDT, as the case may be, in the first instance;ii.where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, such dispute shall not be a ground in a petition to the election court;iii.where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution; the High Court shall hear and determine the dispute before the elections, and in accordance with the Constitutional timelines;iv.where a person knew or ought to have known of the facts forming the basis of a pre-election dispute, and chooses through any action or omission, not to present the same for resolution to the IEBC or PPDT, such dispute shall not be a ground in a petition to the election court;v.the action or inaction in (iv) above shall not prevent a person from presenting the dispute for resolution to the High Court, sitting as a judicial review court, or in exercise of its supervisory jurisdiction under Article 165(3) and (6) of the Constitution, even after the determination of an election petition; (vi) in determining the validity of an election under article 105 of the Constitution, or Section 75(1) of the Elections Act, an election court may look into a pre-election dispute if it determines that such dispute goes to the root of the election, and that the petitioner was not aware, or could not have been aware of the facts forming the basis of that dispute before the election.

28. In the case herein, it is outright that the petitioner is aware of the said avenue for it submitted that it engaged the 3rd respondent albeit by way of letters and as such, it remains unknown what ensued after such engagement. I agree with the 3rd respondent that the petitioner ought to have properly moved it in order to reach a determination. That for the petitioner to have a reprieve before the court herein, the 3rd respondent ought to have pronounced itself prior and the decision reached thereby would subject for this court’s interrogation and/or determination by way of appeal or Judicial Review.

29. In reference to the above, this court adopts the determination reached by the court in the case of Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Parties) (Constitutional Petition E090,E168,E221,E230,E234,E249, E017,E109 & E010 of 2022 (Consolidated)) [2022] KEHC 3209 (KLR) (Constitutional and Human Rights) in which Majanja, Mwita and Thande JJ extensively explored; disputes related to or arising from nominations; the body with jurisdiction to address such issues; the doctrine of exhaustion of administrative remedies; whether filing a petition before the High Court revolving around electoral disputes relating to or arising from nominations before the dispute had been determined by IEBC’s Dispute Resolution Committee was an infringement of the doctrine of exhaustion of administrative remedies in relation to the – Constitution of Kenya, 2010 Article 88(4)(e) and Elections Act, No. 24 of 2011.

30. That, going by that reasoning therefore, pre-election disputes such as those regarding suitability and eligibility for nomination of candidates, must be resolved by the IEBC in the first instance. The petitioner herein admits that he sought to challenge the suitability of the 1st respondent’s nomination for the seat of the speaker. It is trite that the High Court’s jurisdiction can only be triggered once the IEBC makes a decision on the issue. [Also see Silverse Lisamula Anami & Another v Independent electoral and Boundaries Commission Petition 30 of 2018 and George Mike Wanjohi v Steven Kariuki & 2 others SC Petition No. 2 A of 2014. eKLR].

31. In applying the above principles to the case at hand, I therefore find and hold that the 3rd respondent’s internal dispute resolution mechanism ought to have been followed and allowed to run its full course. The jurisdiction of this court ought not be invoked until that process is exhausted. In the case of International for Policy and Conflict and 5 others v The Attorney General & 5 others (supra) the court held the view that:“Where there exist sufficient and adequate mechanism to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted….. Where the Constitution and or statute established a dispute resolution procedure, then that procedure must be used."

32. In further buttressing the fact that the petitioner ought to have exploited the proper channel provided for by the law, this court further associate itself with the reasoning in the case of Wanjiru Gikonyo andothersv National Assembly of Kenya and 4others Petition No. 453 of 2015 [2016] eKLR, where Onguto J held the view that:(34)……. There is settled policy with clear arguments as well as out of repetitive precedent that courts and judges are not advise-givers. The court ought not to determine issues which are not yet ready for determination or is only of academic interest having been overtaken by events. The court ought not to engage in premature adjudication of matters through either the doctrine of ripeness or of avoidance. It must not decide on what the future holds either.(35)It is however to be noted that the court retains the discretion to determine whether on the circumstances of any matter before it still ought to be determined.

33. In reference to the application dated September 21, 2022 by the proposed interested party, Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party as:A person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may be directly involved in the litigation.

34. Order 1 Rule (10) (2) of theCivil procedure Rules empowers the court, at any stage of the proceedings, upon application by either party or suo moto, to order the name of a person who ought to have been joined or whose presence before the court is necessary to be enjoined for the court to effectively and completely adjudicate upon and settle all questions involved in the suit, to be added as a party.

35. Upon considering the said application and the preliminary objection dated the 26. 0.2022 and applying the relevant provisions of the Constitution and the law, this court makes the following orders;i.The preliminary objection is sustained and the Petition dated September 19, 2022 is thus hereby struck out.ii.The notice of motion dated September 21, 2022 is also struck out.iii.Each party to bear its own costs of the Petition.

36. It is so ordered.

Delivered, dated and signed at Embu this 12th day of October, 2022. L. NJUGUNAJUDGE……………………………………………for the Petitioner……………………………………..for the 1st Respondent……………………………………..for the 2nd Respondent……………………………………..for the 3rd Respondent……………………………………..for the 4th Respondent……………………………………..for the 5th Respondent4