[2022] KEHC 12393 (KLR)

Mutuku v The Taveta Constituency Election Coordinator & 3 others (Constitutional Petition E007 of 2022) [2022] KEHC 12393 (KLR) (20 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12393 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E007 of 2022

JM Mativo, J

June 20, 2022

Between

George Mutuku

Petitioner

and

The Taveta Constituency Election Coordinator

1st Respondent

The Independent Electoral and Boundaries Commission

2nd Respondent

Taveta Deputy County Commissioners

3rd Respondent

Officer Commanding Taveta Police Division

4th Respondent

Judgment

1. In his petition dated February 23, 2022, the petitioner challenges the constitutionality and legality of the manner in which the respondents were conducting voter transfer and registration. They aver that on February 6, 2022, the 1st and 2nd respondents suspended mass voter registration and directed that the registration and voter transfer to continue only at Constituency Offices, Regional Offices and Huduma Centre until February 28, 2022.

2. The petitioner avers that in total disregard of the 2nd respondent’s directions, the 1st respondent in collusion with the Taveta Constituency Development Fund Officers and the area police and area chiefs discreetly moved the BVR machines to Langata village in the border of Taveta Constituency and Kijabe County where the incumbent is facilitating mass voter transfer. The petitioner contends that the illegal voter registration is going on in the home of an officer working in the office of the Taveta Member of Parliament under the supervision of the area police officers and the area chief a one Dafton Mwamburi. He contends that among the CDF officers facilitating the exercise including printing and photocopying identity cards and forms is a one Peter Nyamai and a one Mr Kasanga.

3. Further, the petitioner claims that after being the registered, the imported voters are paid Kshs 500/= each and that the officers undertaking the said exercised are being facilitated and they had closed the constituency offices to undertake the illegal voter importation exercise leaving voters seeking to register and transfer votes at the Constituency offices stranded. Also, he claims that the entire registration is marred by irregularities and only persons of Maasai origin identified by the said CDF officers are allowed to participate to the exclusion of other persons. Further, he claims that persons participating in the exercise must first submit their names and national identity cards to the said Peter Nyamai before being allowed to access the premises.

4. The petitioner avers that the aforesaid actions violate articles 10, 21(1), 47(1) & (2), 236(2) of the Constitution and the principles of natural justice. He also claims that his rights under articles 47 and 27(1), (3) and (5) of the Constitution have been violated. He seeks the following orders: -a.A declaration that:- (i)The process of mass registration at Ole Polos is unlawful and unconstitutional; and (i) that the 1st respondent does not have power to transfer voter registration from the Constituency Office.b.An order that the 1st, 3rd and 4th respondents have violated articles 6 and 10 of the Constitution and are unfit to hold public offices.c.An order restraining the respondents from conducting voter registration and transfer at Langata village.d.An order directing the respondents to conduct mass voter registration and transfer in the entire Taveta Constituency.e.Costs of the petition.

5. The 1st and 2nd respondents filed the replying affidavit of Abdul Swaleh Jamanda dated March 25, 2022, the 1st respondent herein who is the 2nd respondent’s Senior Elections Registration Officer, Taveta Constituency. He averred that phase 2 of the Enhanced Voter Registration Exercise, ECVR 11, started on January 17, 2022 and ended on February 7, 2022. H deposed that

6. The 3rd and 4th respondents filed the replying affidavit of Ibrahim Muchuma dated March 15, 2022. He deposed that this suit is improperly before this court, that article 83 of the Constitution confers mandate registering voters to the IEBC. Lastly, he averred that the respondent has failed to exhaust the dispute resolution mechanism provided under article 88 (4) of the Constitution.

7. The nub of the petitioner’s counsel’s submissions is that the issue before this court is not a determination of article 88 (4) (e) of the Constitution nor is it an electoral dispute, but a dispute between the IEBC and a citizen. To him, article 88 does not apply to this case. In a nutshell, he argued that an electoral dispute involves a candidate and a political party, and that, the petitioner in this case is neither a candidate nor a political party.

8. The respondents’ argument is that this suit offends the provisions of section 74 of the Elections Act1 and article 88 (4) of the Constitution and section 4 of the IEBC Act because the petitioner failed to exhaust the mechanism provided by the law. Reliance was placed on In the Matter of the National Land Commission,2 Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others3 andIn the matter of the Interim Independent Electoral Commission.41No. 24 of 2011, Laws of Kenya2[2015] e KLR.3[2012] e KLR.4Application No. 2 of 2011.

9. The key issue here is whether a dispute relating to voter registration exercise falls within the ambit of the disputes contemplated under article 88 (1) of the Constitution and section 74 of the Elections Act. If it does, then, the next quest will be whether this suit offends the doctrine of exhaustion of remedies.

10. Democratic election processes include systems for the resolution of complaints for each element of the process. These electoral complaint mechanisms allow voters, candidates and political parties to formally voice their concerns and receive proper redress for those grievances. For example, there should be systems in place to handle complaints regarding ballot qualification, voter registration, political party registration and vote tabulation (among others).

11. The system for the Resolution of Electoral Disputes refers to the system of appeals through which every electoral action or procedure can be legally challenged. Legal appeals related to electoral issues can be submitted before judicial or other agencies established by the law. The system’s aim is to ensure real protection for and effective enforcement of the political rights to elect or to be elected. The system aids in the protection of certain values that support every electoral action and every electoral procedure such as legality, certainty, objectivity, impartiality, authenticity, clarity and justice.

12. At the centre of the opposing arguments presented by the parties is the true meaning of the words “electoral process.” In searching for its meaning, it is inevitable that I will consult dictionaries. The practice of appealing to dictionaries simply as memory aids was deemed a function of judicial notice.5 Words must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question, dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court.65See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227, 270–71 (1999).6Ibid.

13. Dictionaries may also serve an instantiating function, that is, they may be used by the court to confirm that a contested meaning has been employed in either speech or literature, and has thus been recognized as a valid meaning by lexicographers. Of this instantiating function, Professors Hart and Sacks said, “Unabridged dictionaries are historical records (as reliable as the judgment and industry of the editors) of the meanings with which words have in fact been used by writers of good repute. They are often useful in answering hard questions of whether, in an appropriate context, a particular meaning is linguistically permissible.”77Henry M. Hart, JR. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law1375–76 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994).

14. In using a dictionary to instantiate a contested meaning, a judge searches the dictionary to determine what meanings have attained currency in the language at large and are thus linguistically permissible in a given context.88Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 13 (1998).

15. Electoral process has been defined as ‘a series of key election-related undertakings encompassing, inter alia, the formulation of legislation, delimitation, conflict prevention and management initiatives, civic and voter education, registration of voters, development and implementation of codes of conducts, nomination of candidates, campaigning, voting, tabulation, results and announcements and election adjudication.99https://www.lawinsider.com/dictionary/electoral-process

16. The Collins Dictionary defines the two words separately as follows. Electoral is used to describe things that are connected with elections. A process is a series of actions which are carried out in order to achieve a particular result.1010https://www.collinsdictionary.com/dictionary/english/process

17. The Constitution grants 4 cadres of rights to participate in the electoral process. These rights include: - Right to be registered as a voter; Right to vote by secret ballot in any election or referendum; Right to be a candidate and if elected, right to hold a public office; and right to join and participate in a political party. Elections is a process and the attempt by the petitioners to delink voter registration from the process is legally untenable. This being the position, a dispute relating to voter registration falls within the ambit of section 74 of the Elections Act and Article 88 of the Constitution.

18. Article 88 (4) (e) of the Constitution mandates the IEBC to settle electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. This mandate is replicated in section. This mandate is replicated in section 74 of the Elections Act which provides for settlement of certain disputes. It reads: -(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 or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2)An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3)Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

19. The above provisions prescribe one of the constitutional and statutory mandates of the IEBC which is to hear and determine disputes arising from nominations. The petitioner never exhausted the above mechanism. The question which follows is whether this court is divested of jurisdiction on account of the applicant’s failure to exhaust the dispute resolution mechanism provided under the above provisions. I have in numerous previous decisions pronounced myself on the doctrine of exhaustion. I will inevitably repeat what I said in the said decisions to the extent it would be relevant to the issues at hand.

20. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks Judicial Review of that action without pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine has implicit valued juridical lineage in Kenya.11 As the Court of Appeal12held in Speaker of National Assembly vs Karume:1311Republic v Independent Electoral and Boundaries Commission(I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR12Ibid.13{1992} KLR 21. “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."

21. Even though the above decision was pronounced prior to the promulgation of the 2010 Constitution, countless post-2010 court decisions have incorporated the reasoning and have added validation and justification for the doctrine under the 2010 Constitution.14In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others15 the Court of Appeal provided the legitimate justification and foundation for the doctrine as follows: -14Ibid.15{2015} eKLR.“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

22. The High Court in the Matter of the Mui Coal Basin Local Community16explicated the rationale in the following words: -16{2015} eKLR.“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

23. Undisputedly, the petitioner claims to be aggrieved by the manner in which voter registration exercise was being undertaken. As held herein above, voter registration cannot be delinked from the electoral process and therefore a dispute relating to voter registration falls within the ambit of Article 88(f) of the Constitution and section 74 of the Act. Plainly, the applicant’s grievance is an electoral dispute within the provisions of Article 88(f) of the Constitution and section 74 of the Elections Act. The petitioner never provided a justification for by passing the said mechanism. It is my finding that the petitioner ought to have exhausted the dispute resolution forum provided by the Constitution and the enabling statute. On this ground alone, I dismiss this petition.

24. Not withstanding the above finding, even if I were to address the petition on merit, the petition still has one major hurdle to surmount. A reading of the factual basis upon which the petition is grounded shows that the petition is essentially hankered on issues of fact which require oral evidence to be proved. For example, the petitioner accuses the 1st respondent of colluding with the Taveta Constituency Development Fund Officers and the area police and area chiefs and discreetly relocasting the BVR machines to Langata village in the border of Taveta Constituency and Kijabe County where the incumbent is facilitating mass voter transfer. This is an attractive averment. But it requires oral testimony which must be tested by way of cross-examination, not photographs where the maker or photographer is not called to testify as the law of evidence requires.

25. Additionally, the petitioner contends that the illegal voter registration is going on in the home of an officer working in the office of the Taveta Member of Parliament under the supervision of the area police officers and the area chief a one Dafton Mwamburi. He contends that among the CDF officers facilitating the exercise including printing and photocopying identity cards and forms is a one Peter Nyamai and a one Mr Kasanga. These are grave allegations. But they cannot be proved by way of affidavit evidence without calling the deponent. Where a petition stands on contested issues of fact, then oral evidence is the way to go. The moment a response was filing disputing the facts, the petitioner ought to have taken the cue, because as stated shortly, the burden of proof lies on he who alleges.

26. Also, the petitioner alleges that after being the registered, the “imported voters are paid Kshs 500/= each and that the officers undertaking the said exercised are being facilitated” and that they closed the constituency offices to undertake the illegal voter importation exercise leaving voters seeking to register and transfer votes at the Constituency offices stranded. He also claims that the entire registration is marred by irregularities and only persons of Maasai origin identified by the CDF officers are allowed to participate to the exclusion of other persons. Further, he claims that persons participating in the exercise must first submit their names and national identity cards to the said Peter Nyamai before being allowed to access the premises. These allegations are serious. However, the burden of prove stands on the way of the petitioner. Armed with such evidence, the petitioner ought to have at the earliest opportunity possible sought the courts directions to adduce oral evidence.

27. The party with the obligation of persuasion-what Wigmore termed the risk of non-persuasion-is said to bear the burden of proof.17 The effect of non-persuasion on a party with the burden of proof is that the particular issue at stake in the litigation will be decided against the party. “Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail.17F. JAmes & G. Hazard, Civil Procedure§ 7. 6, at 314 (3d ed. 1985); C. Mccormick, Evidence§ 336, at 947-48 (1984); 9 J. Wigmore, Evidence§ 2485, at 285 (J. Chadbourne rev. 1981).

28. Flowing from the issues discussed herein above and the conclusions arrived at, it is my finding that this petition fails. I dismiss it with no orders as to costs.Orders accordingly.

SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 20TH DAY JUNE 2022. JOHN M. MATIVOJUDGE