[2022] KEHC 9965 (KLR)

Mwigai v Independent Electoral & Boundaries Commission & 2 others; Amani National Congress Party (Interested Party) (Judicial Review 2 of 2022) [2022] KEHC 9965 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9965 (KLR)

Republic of Kenya

In the High Court at Vihiga

Judicial Review 2 of 2022

PJO Otieno, J

July 13, 2022

Between

Samuel Idaria Mwigai

Applicant

and

Independent Electoral & Boundaries Commission

1st Respondent

Returning Officer, IEBC Vihiga County

2nd Respondent

Alfred Masadia Agoi

3rd Respondent

and

Amani National Congress Party

Interested Party

Judgment

1. The Applicant has approached the court by a Notice of Motion dated June 30, 2022, filed pursuant to the orders of June 28, 2022 by which the court granted leave to the Exparte Applicant to apply for orders of judicial review in the nature of certiorari and mandamus.

2. The prayers in the Motion were worded thus:-“(a)An Order of Certiorari do issue quashing the entire decision of the 2nd Respondent of accepting the 3rd Respondent’s substitution of the Deputy Candidate’s nominee, outside the date of presentation of nomination papers to the Commission which date was 05/06/202, and affirmed by the 1st Respondent vide the decision delivered on the 16th June 2022 dismissing the Applicant’s Complaint No. 183 of 2022 – Samwel Idaria Mwigai –versus- County Returning Officer Vihiga County & 2 others.(b)An Order of Mandamus do issue compelling the 1st Respondent to degazette the names of the 3rd and 4th Respondents names as the candidate for the Governor and Deputy Governor, respectively for Vihiga County for the elections set for 9th August 2022. ”

3. The grounds disclosed on the face of the Motion and on the Affidavit filed in support thereof are that while the 1st Respondent is bound by gazette notices dated January 20, 2022 and April 28, 2022 setting timelines for specific activities including nomination of gubernatorial candidates and their deputies which were set to between 4th and 7th June between the hours of eight O’clock in the morning and four O’clock in the afternoon, the 2nd Respondent sidestepped such timelines and gave to the 3rd Respondent undue accommodation beyond the date set.

4. The submission of names of candidates for the gubernatorial position by Political Parties was set for on or before the May 16, 2022 pursuant to which the Interested Party submitted the name of the 3rd Respondent and one Vincent M’maitsi.

5. The grievance is that having submitted the two names to the 1st Respondent, when time to submit nomination papers came on the June 5, 2022, Mr. Vincent M’maitsi was disqualified on the basis that he had not resigned as a public servant by the appointed date and the Returning Officer unprocedurally and devoid of jurisdiction allowed the 3rd Respondent to substitute the running mate and to present the nomination papers by the June 7, 2022. To the Exparte applicant that was an affront to Section 18 of the Elections Act and done ultra vires the powers of the 2nd Respondent and illegal having been done outside the statutory timelines set by the statute and the gazette notices.

6. Those grounds were echoed in the Affidavit in Support with there being exhibited documents to support the contentions. The documents exhibited included the Complaint to the Dispute Resolution Committee, the Replying Affidavit filed by the 1st Respondent before the Committee and the decision by the Committee.

7. By the orders granting leave, it was directed that the Exparte Applicant files the Notice of Motion within three (3) days so that the Respondents also file responses within three (3) days after service.

8. After the Motion was filed and served the 1st and 2nd Respondents filed a Replying Affidavit together with list of authorities on July 6, 2022 while the 3rd and 4th Respondent only filed a Notice of Appointment and sought to address the court on questions of law only. The 5th Respondent filed no papers and did not participate at the hearing.

9. During the hearing, Mr. Sore and Mr. Malenya held brief for Mr. Kibau for the Exparte Applicant while Ms. Odek appeared for the 1st and 2nd Respondents as Mr. Chitwa appeared for the 3rd and 4th Respondents.

10. The rival submissions centered on the interpretation of Section 18 of the Elections Act with the Exparte Applicant stressing the point that a plain reading of the law directed that the expression nomination employed by the Act and held by the Court of Appeal1 is that it mean submission to the Commission of the name of a candidate in accordance with the Constitution and the Act and is not a process extending to presentation of nomination papers. To the Exparte Applicant the 1st and 2nd Respondent were twisting the express provision of the Act by misinterpreting it in a skewed manner and ignoring the architecture provided by Section 13 and 18 which is intended to provide scrutiny over candidates. In short the Exparte Applicant’s position is that once the Interested Party submitted the name of the 3rd Respondent and Vincent M’maitsi it was not open for the 2nd Respondent to allow substitution of the said Vincent with the 4th Respondent after the 5th June 2022 unless there was death, incapacity resignation or breach of the Electoral Code of Conduct by the nominee.1Joseph Ibrahim Musyoki –Vs- Wiper Democratic Movement & Another [2017] eKLR

11. For the 1st and 2nd Respondent, the submissions offered by Ms. Odek Advocate was to the effect even though the gazette notice of January 20, 2022 set the deadline for presentation of nomination papers as June 5, 2022, there was a corrigenda of 28/4/2022 and an internal memo dated May 9, 2022 which changed the date to be between 4th and 7th June 2022. It was submitted that all such notices were given pursuant to Regulation 98, Election (General) Regulations 2012 which vests the Commission with power to provide measures to achieve efficient and fair elections by issuance of directives in that regard. To the 1st and 2nd Respondent, the only issue to be addressed and answered in the application is when the Commission is deemed to have received nomination papers. It was admitted that the 3rd Respondent did appear with Vincent M’maitsi on 5/6/2022 when it emerged that the said Vincent was disqualified but within its powers the 2nd Respondent gave him time upto June 7, 2022 to effect a substitution which was within the stipulated period.

12. To them the law, Section 18, Elections Act, permits the substitution of a Deputy Governor nominee any time before the date for presentation of nomination papers to the Commission and that what the 3rd Respondent did was not offensive to the law but in consonance with it. It was added that by a letter by the 5th Respondent dated the June 6, 2022 the Commission was notified of the resignation of Mr. Vincent M’maitsi and the nomination of Joyce M’maitsi as the Deputy Governor nominee by the Political Party. With such background, it was therefore submitted that the dismissal of the Complaint by the Dispute Resolution Committee was well founded as it held that the substitution was done before the presentation of nomination papers and therefore valid and lawful.

13. Counsel pointed out that the prayer for Mandamus could not lie as no gazzettement has been done to warrant the 1st Respondent being compelled to degazette. The application was viewed to lack merit and to be grounded on the misapprehension of the purport of Section 18 of the Act and thus it was prayed that the same was a good candidate for dismissal.

14. For the 3rd and 4th Respondents, Mr. Chitwa Advocate, took the position that the court needs to render itself on the remedies available to the Exparte Applicant from a decision by the Dispute Resolution Committee. The point was taken that as the decision was on the merits only appeal would have sufficed and not judicial review. He underscored the scope of judicial review to be limited to illegality, irrationality and procedural impropriety. Counsel reiterated the position taken by the 1st and 2nd Respondents on Section 18 of the Act insisting that the window exists upto the date the nomination papers are received by the Commission. On the decision by the Court of Appeal in the case of Joseph Musyoki (supra) Counsel distinguished it as not relevant nor applicable on the facts of this case and urged the court to be persuaded with the decision in Republic –Vs- Ministry of Lands, exparte, Catherine Matete Musinga on when an order for judicial review would issue.

15. In his rejoinder, Mr. Malenya Advocate took the view that by dint of Section 14 of the Act, the court is vested with the jurisdiction to entertain and determine applications for judicial review against any decision by the Commission made pursuant to any provisions of the Constitution and the said Act. He equally relied on the provisions of article 165 to give to the Court jurisdiction to supervise the inferior judicial and quasi judicial bodies to keep them in check.

16. On the submissions that the judicial review order should not issue because the decision maker has not been cited, Counsel took the view and invited the court to take judicial notice and find that the Dispute Resolution Committee is an ad hoc body that is never permanent and whose tenure had lapsed by the time this matter was filed.

17. On Section 18 of the Elections Act Counsel clarified and appear to concede that the nomination papers could be presented upto the June 7, 2022, save that the date appointed by the 1st Respondent for the 3rd Respondent was June 5, 2020 and therefore the presentation of the papers after that date was outside the set deadline and thus illegal and ultra vires the powers of the 2nd Respondent. He added that even if the Court was to hold that the time set by the 1st Respondent was extendable, the extension could only be by the 1st Respondent in terms of 1st schedule of the Act, and not by the 2nd Respondent.

Analysis and determination 18. The collective appreciation of the dispute in this matter is to answer the question what the law dictates under Section 18 of the Elections Act as regards substitution of a nominee for Deputy Governor Candidate. That is the sole question to be resolved by the application even if the arguments may appear to make it wider than it is.

19. However, there are technical issues raised by the Respondent and regard the suitability of the vehicle used to question the decision as well as the question whether the application as drafted and filed meets the threshold for judicial review litigation. I consider such preliminary matters to be the kind the court must deal with beforehand before delving into the merits.

20. The Exparte Applicant’s case is that in accepting the 3rd Respondent’s papers on the June 7, 2022, the 2nd Respondent acted contrary to the law and therefore ultra vires and illegal.

21. The resolution of the dispute must therefore determine what Section 18 Elections Act demands and whether there was a time fixed beyond which the 2nd Respondent could not accept the nomination papers presented by the 2nd Respondent. In doing so the court is clear that it is the decision of the 2nd Respondent as confirmed by 1st Respondent and not the decision of the 1st Respondent’s Dispute Resolution Committee that is under challenge.

22. The Court reads 18 of the Elections Act, created as the fulcrum upon which the application rotates, to say that a County Governor Candidate or Political party shall not, after the Commission has received nomination of the running mate, change or substitute the person so nominated as such running mate, unless on account of death, resignation or incapacity of the nominated candidate or the violation of the Electoral Code of Conduct by the nominated candidate. With such appreciation, does the decision sought to be challenged demonstrate irrationality, illegality, procedural impropriety, acting ultra vires its statutory powers?

23. Judicial review as a supervisory tool by the court over the subordinate Courts, Tribunals and other bodies and persons exercising judicial and quasi judicial mandates is designed not to review the merits of the decision. Where one seeks to challenge the merits the avenue is appeal and not judicial review. In live with such principles, this court takes guidance from the Court of Appeal in Municipal Council of Mombasa –Vs- Republic and Umoja Consultants [2002] eKLR where the Court held:-“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”

24. This court has posed for itself the said questions and it finds that there is no allegation or indeed proof that the process expected of the Committee, was deviated from just like there is allegation that any party interested in the outcome was never accorded the benefits of the principles of natural justice. It is also not in contention that in arriving at the determination reached the Committee failed to consider the materials it was to consider in that it took into account irrelevant considerations. The Complaint here is two fold; that the 2nd Respondent had no authority to extend time for the 3rd Respondent to submit his nomination papers and that in doing so it acted beyond its powers thus acted ultra vires.

25. It is not in contention that by law, that 2nd Respondent is on behalf of the 1st Respondent empowered to receive nomination papers by Candidates. The contention is that the 3rd Respondent was limited to present his papers not later than 5th June 2022. The Court has perused the Legal Notice dated January 20, 2022 and the Corrigenda dated 28/4/2022 in particular Notices Nos. 434 and 4959 to set the date for Political parties to present their nominees for the election of County Governors to do so not later than May 16, 2022 and the date for the nomination of Candidates for the position of Governor to be between 4th and 7th June 2022.

26. There is no deadline set for the 5th June 2022. That the Commission could have administratively set a specific time for a particular candidate would remain an administrative arrangement that could be tinkered with to meet the bigger ethos of meeting and satisfying the rights upon the 3rd and 4th Respondents to enjoy the political rights enshrined under article 38 (3) (c) of the Constitution.

27. To say that one would be restricted to an administrative calendar shorter than the period settled by the gazette notice would be impose an unreasonable restriction on the right to participate in the election and enjoy the right vested by the Constitution. Needless to add that the administrative directives even if grounded upon the law cannot override the parent law and least of all the Constitution.

28. With the foregoing conclusions, the court finds that there was never any overstretch of power of the 2nd Respondent in allowing the 3rd Respondent to substitute his running mate as was done when done with the time set for receipt of the nomination papers by the 1st Respondent. The inevitable conclusions is that when the 2nd Respondent on behalf acted within the mandate provided by the law, it cannot be said to have acted ultra vires or illegally to invite the remedy of Certiorari. It thus follows that the request for an order of certiorari lacks merits and is therefore dismissed.

29. For prayer 3, the court appreciates and views its fate to be tied to whether there was merit in prayer for Certiorari and that if that prayer failed, as it has, then the prayer for Mandamus equally fails. It must fails because having sustained the decision of the 2nd Respondent, that decision remains and gazettement of the person so nominated stands and needs to be gazette as by law mandated.

30. In the end, the entire application fails and it is therefore dismissed with costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 13TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the Exparte ApplicantMulama for the 1st and 2nd Respondent and holds brief for Chitwa for the 3rd and 4th RespondentNo appearance for the Interested PartyCourt Assistant: Kulubi