[2025] KECA 636 (KLR)

Ndumba v Returning Officer Kimilili Constituency & another (Civil Appeal E054 of 2024) [2025] KECA 636 (KLR) (4 April 2025) (Judgment)

Neutral citation: [2025] KECA 636 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Appeal E054 of 2024

HA Omondi, LK Kimaru & LA Achode, JJA

April 4, 2025

Between

Pius Simiyu Ndumba

Appellant

and

Returning Officer Kimilili Constituency

1st Respondent

Independent Electoral & Boundaries Commission

2nd Respondent

(Being an appeal from the ruling of the High Court of Kenya at Kisumu (Ougo J) dated 6th October 2023) in Constitutional petition No.010 of 2022)

Judgment

1. This appeal is founded on four grounds which dovetail into one main issue for determination. That is, whether the appellant’s Constitutional petition No. 010 of 2022 was properly before the High Court. An ancillary issue is whether the learned Judge was right in condemning the appellant to pay the costs of the petition, upon striking it out in the ruling delivered on 6th October 2023.

2. The petition was instituted on 22nd December 2022 at the High Court in Bungoma, by Pius Simiyu Ndumba the appellant herein, pursuant to Articles 38(3), 81(d), 83(2), 86 and 88(4) of the Constitution and Sections 3, 4, 5, 6, 7 and 8 of the Elections Act (the Act) and Election Regulations 2012. The petition was filed against the Returning Officer for Kimilili Constituency and the Independent Electoral and Boundaries Commission, (IEBC) who are the 1st and 2nd respondents, respectively.

3. The gist of the petitioner’s case was that the respondents failed to establish and maintain an accurate voter register that was publicly available, verifiable and credible and as a result, they violated the petitioner’s fundamental rights and freedoms to participate in the general election on 9th August, 2022 as a voter and a candidate. The appellant prayed for the following reliefs:a.A declaration that the petitioner’s fundamental rights and freedoms as a voter and a candidate have been violated by the respondent.b.A declaration that the respondent acted ultra vires with its statutory powers.c.An order directing the respondents to reaffirm the name of the petitioner in the voter’s register which occasioned him and his supporters not to vote.

4. The respondents opposed the petition and raised a Preliminary Objection (P.O) dated 27th January 2023, challenging the court’s jurisdiction. The respondents invoked the provisions of Section 12 of the Act to argue that the petitioner had not exhausted all available remedies provided by the law before approaching the superior court. They contended that the law required the petitioner to file his complaint with the Registration Officer, who has jurisdiction to hear and consider the petitioner’s complaint in the first instance. As such, they maintained that the petition was premature and should be dismissed on that basis.

5. In response, the appellant contended that the P.O was incompetent. Citing Articles 23(1) and 165(3) of the Constitution, the petitioner submitted that the High court possesses the requisite jurisdiction to determine whether a right or fundamental freedom, as enshrined in the Bill of Rights, has been denied, violated, or infringed. The petitioner argued that his exclusion from the voter register, coupled with the failure of his biometric data to appear on the election date of 9th August, 2022, resulted in the violation of his right to participate in the general election both as a voter and as a candidate, as provided under Article 38 of the Constitution. Additionally, the petitioner asserted that his inability to cast his vote subjected him to psychological torture, in contravention of Article 29 of the Constitution.

6. Upon hearing the parties, Ougo J, delivered a ruling on 6th October 2023 and held that she did not have jurisdiction to hear and determine the petition. She allowed the P.O and struck out the petition.

7. Displeased by the ruling of the High Court, the appellant lodged this appeal founded on four grounds, alleging that the High Court erred in law and in fact by:i.Allowing the preliminary objection and striking out the petition, by heavily relying on Section 12 of the Elections Act yet the appellant’s petition was a constitutional petition seeking redress under Article 38 of the Constitution.ii.By laying emphasis in Section 12 of theElections Act, which deals with the question concerning the registration of a voter, yet the appellant was a validly registered voter, cleared by the respondent, and certified to run as a candidate for the seat of member of the County assembly of Bungoma Maeni Ward, on an ODM ticket, which had been issued by the respondents. Therefore, the appellant is exempt from the provisions of Section 12. iii.By heavily relying on the exhaustion doctrine, yet the appellant had filed a constitutional petition seeking relief for violation of constitutional right to vote during the voting day on the 9. 8.2022 general election.iv.By condemning the petitioner to pay costs and yet he had not recovered from physical, emotional embarrassment and financial loss suffered during the voting day, when the appellants name was illegally and unlawfully removed from the voter’s register.

8. In the appellant’s submissions dated 3rd June 2024, and filed through the firm of M/s Onyando & Co Advocates in support of the appeal, grounds 1, 2, and 3 were condensed and argued together, while ground 4 was argued separately. In advancing the first three grounds of the appeal, counsel contended that Section 12 of the Act was inapplicable to the appellant’s constitutional petition. This, he argued, was because the appellant was not seeking registration as a voter, he was seeking for inclusion of his name in the voters’ register since it was missing from the register even after he had been cleared as a voter and a candidate by the respondent.

9. Counsel argued that, had the appellant’s name been excluded at the time of applying for registration as a voter, his claim would have been properly determined by the Registration Officer. However, his inability to participate in the general election amounted to infringement and violation of his constitutional rights contrary to Article 38(2) of the Constitution, hence the appellant’s choice of forum. Furthermore, the petitioner relied on Article 22(1) of the Constitution and the provisions of Rule 4 and 10 of the Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013.

10. Counsel submitted that where it is established that an individual's constitutional rights have been violated or infringed upon, contrary to Articles 28 and 31 of the Constitution, the Constitutional Court possesses jurisdiction to make such a declaration and to assess consequential damages, including general, exemplary, aggravated, and punitive damages, arising from the violation of fundamental rights and freedoms.

11. Turning to the second ground, counsel contended that given the constitutional nature of the appellant’s petition, the learned Judge ought not to have struck it out with costs to the respondent. That the appellant did not in anyway, contribute to the removal of his name from the 2nd respondent’s register, both in the manual voter register or KIEMS KIT. Moreover, the appellant had suffered physical, emotional, and psychological distress, as well as financial losses incurred during the campaign, including fees paid to the respondent and the ODM party. In these circumstances, the award of costs against the appellant was unjustified and ought to be set aside.

12. In opposition to the appeal, M/s Mutumbwa Law Advocates, filed submissions dated 5th June of 2024 on behalf of the respondents and raised the following issues, namely: whether the High Court erred in law by relying on Section 12 of the Act to strike out the appellant’s petition; whether the Court erred in law and in fact in condemning the appellant to bear costs of the petition; and, who should bear the costs of the appeal.

13. On whether the High Court erred in law by relying on Section 12 of the Act to strike out the appellant’s petition, counsel contended in support of that Court’s decision that violation of the right to vote can only arise where the right has been duly conferred and crystallized through legal means. That the right to vote is not absolute but is limited to those who meet the legal eligibility criteria and have been duly registered by the 2nd respondent. At the core of this argument is the definition of a voter under Section 2 of the Act, which defines a voter as a person whose name appears in the current register of voters.

14. Counsel asserted that Articles 82(1)(c) and (d) of the Constitution obligates Parliament to enact legislation, aimed inter alia, at ensuring the continuous registration of citizens as voters, as well as facilitating the conduct of elections and the efficient supervision thereof. It is in furtherance of this constitutional mandate that the Elections Act was enacted. Additionally, the respondents contended that, pursuant to Section 3 of the Act, the right to vote is exclusively conferred upon adult citizens who have been duly registered in the register of voters.

15. Consequently, the right to vote is restricted to citizens who are properly registered and therefore, any claim of violation of the appellant's right to vote must first be predicated upon confirmation of his status as a registered voter. Any claim premised on exclusion from the register should therefore, be addressed pursuant to Section 12 of the Act, as relief for reaffirmation in the voters register falls within the ambit of Section 12 of the Act.

16. In view of the foregoing, counsel submitted that the appellant was obliged by law to first exhaust the mechanisms under Section 12 of the Act and the learned judge was thus, correct to rely on the doctrine of exhaustion and strike out the petition, in line with the Supreme Court decision in Nicholus V Attorney General & 7 others; National Environmental Complaints Committee & 5 others (interested parties) [2023] KESC 113 (KRL).

17. Counsel further submitted that even though the High Court had jurisdiction to entertain the appellant’s petition, that jurisdiction should have been correctly invoked after exhausting the remedies under Section 12. Counsel referred us to the decision in Albert Chaurembo Mumbo & 7 others V Maurice Munyao & 148 others, Petition No.3 of 2016, [2019] eKLR to urge that, even where the superior court has jurisdiction to determine a question of law, the first opportunity has to be given to relevant persons, bodies, tribunals, or any other quasi-judicial authorities and organs to deal with a dispute as provided for in relevant parent statutes. The petition was therefore, prematurely placed before the superior court and the Court was right to strike it out.

18. On the second issue, counsel submitted that it is well- established that costs in litigation are awarded to compensate the successful party. He referred to Jabir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2014] KLR, where it was held that the award of costs is typically governed by the principle of "costs follow the event," subject to the discretionary power of the trial court. That the appellate court will not ordinarily interfere with the trial court's exercise of discretion in awarding costs, unless it can be demonstrated that such discretion was not exercised judiciously, as set out in Mbogo & Another v. Shah (1968) EA 93. Counsel posited that the appellant had not produced any evidence before this Court to prove that the superior court was clearly wrong, or misdirected itself in awarding costs.

19. In further reliance of Jabir Singh Rai (supra) counsel submitted that the respondents have defended the appeal and successfully shown that it lacks merit. As such, the appellant ought to bear the costs of this appeal.

20. When the matter came up for hearing in plenary on the virtual platform, Mr. Khaemba learned counsel appeared for the appellant. He adopted the filed submissions and added that the appellant was pursuing his right as a registered voter and that once he was nominated by his political party, he was deemed to be a registered voter. He was therefore, seeking a re-affirmation of his name in the register. Ms. Namai learned counsel, appeared for the respondent. She reiterated the submissions they had filed and added that, clearance to vie for a seat is not evidence of registration as a voter. Further that all the appellant’s prayers were pegged on his being a registered voter, yet he pleaded all along that his name was not in the voters’ register.

21. We have given due consideration to the record, the grounds of appeal, the rival submissions, and the law. This being the first appeal, the duty of the court as spelt out under rule 31(1)(a) of the Court of Appeal Rules, 2022 states as follows:“On appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power to re-appraise the evidence and to draw inferences of fact.”

22. The duty of the Court on first appeal was well stated in the much cited case of Selle & another v Associated Motorboat Co. Ltd. & others [1968] EA 123 in the following terms:“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

23. The main issue for determination in the appeal before us is whether the learned Judge misdirected herself, in holding that the appellant’s petition was improperly before the court and therefore the respondent’s P.O was merited.

24. In the often quoted precedent of Mukisa Biscuits Manufacturing Ltd v West End Distributors [1969] EA 696 that lays out the basis of a P.O, Law JA stated 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 the contract giving rise to the suit to refer the dispute to arbitration…….”

25. In the same case, Sir Charles Newbold P. added that:“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.”

26. A P.O serves to challenge the legal sufficiency of a case, proceeding on the assumption that all factual claims presented are accurate. It is reserved solely for addressing legal points, strictly avoiding engagement with any disputed factual matters. The court's assessment hinges on whether the objection originates exclusively from the pleadings and is rooted firmly in established legal principles.

27. Should the determination necessitate an inquiry into extraneous factual matters, or the exercise of judicial discretion, a P.O would be deemed procedurally inappropriate. See the case of Oraro Vs Mbaja [2005] 1KLR 141, where the Court held that:“Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”.

28. A P.O cannot be raised if any fact has to be ascertained from elsewhere, or if the court is called upon to exercise judicial discretion. The court will also take into account that the P.O must stem from the pleadings and raise pure point/s of law. It should not deal with disputed facts, nor should it derive its foundation from factual information.

29. Having set out what constitutes a Preliminary Objection, we will now test the P.O raised by the respondents to establish whether it met the threshold.

30. In allowing the P.O, the court rendered its decision in the following terms:“a.The principles established by authorities is that jurisdiction flows from either the constitution or legislation or both and jurisdiction can be limited or unlimited by statute or constitution. Any judgment made without jurisdiction is null and void.b.It is clear from the provisions of section 12 of the Election act CAP 7 that there exists out of court conflict resolution mechanisms to address the petitioner’s concern regarding inclusion of his name into the voters’ register.c.The petitioner should have made this claim before the Registration Officer and if dissatisfied with the outcome, pursued the matter before the principal magistrate’s court. Only after exhausting these avenue, can the petitioner approach this court on matters of the law through the appeals process.d.In this case, the dispute identified by the petitioner is one that can be resolved in accordance to the provisions of section 12 of the election Act. In light of this section, this court lacks the jurisdiction to hear the petitioner’s dispute in the first instance. The first part of the call was to table the dispute before the Registration Officer and exhaust all mechanisms provided under section 12 of the Election Act.”

31. The appellant contends that the learned Judge erred in relying on Section 12 of the Act and the exhaustion principle, whereas his was a constitutional petition seeking redress under Article 38. He states that despite undergoing the preliminaries of registration and being cleared as a voter and a candidate by the respondents, his name was omitted from the voter’s manual register and biometric data, preventing him from participating in the general election. Consequently, the appellant contends that this omission constitutes a violation of his constitutional right to participate in the election process.

32. On their part, the respondents urge that the High Court properly relied on Section 12 of the Act in dismissing the petition. That for a right to vote to be violated, it must be crystallized through legal means, as the exercise of a voter’s right to vote is contingent upon their registration as a voter. That in this case, even though the High Court had jurisdiction to entertain the appellant’s petition, that jurisdiction could be invoked only after exhausting the remedies under Section12 of the Act.

33. In our view, the gist of the argument is whether the superior court had jurisdiction to entertain the petition presented before it in the first instance. The Supreme Court in Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KESC 8 (KLR) held, inter alia that;“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law.”

34. Article 165(3)(b) of the Constitution confers jurisdiction upon the High Court to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. In exercising this jurisdiction, however, it is imperative that the Court adopts a nuanced approach to balance constitutional remedies for the violation of rights, with alternative means of redress as was articulated in Nicholas v Attorney General & 7 others; National Environmental Complaints committee & 5 others (interested parties) [2023] KESC 113 (KLR) where the Supreme Court stated that:“…there was a need for the court to scrutinize the purpose for which a party was seeking relief, in determining whether the granting of constitutional reliefs was appropriate in the given circumstances. That meant that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, was a necessary prerequisite on the part of any superior court.”

35. Parliament enacted the Elections Act in obedience to the mandate conferred under Article 82(c) of the Constitution requiring it to enact legislation to regulate the continuous registration of citizens as voters. It thereby promoted the right to vote under Article 38. This is the right the appellant claims was violated. Section 3 of the Elections Act stipulates that;“(1)An adult citizen shall exercise the right to vote specified in Article 38(3) of the Constitution in accordance with this Act.(2)A citizen shall exercise the right to vote if the citizen is registered in the Register of Voters.”Section 12 of the Elections Act provides that;1. A person who has duly applied to be registered and whose name is not included in the register of voters may submit a claim for the name to be included in the register to the registration officer in the prescribed form and manner and within the prescribed time.2. Subject to the Constitution, a claim under subsection (1) shall be determined by the registration officer in the prescribed manner, and an appeal shall lie in the prescribed manner, to the Principal Magistrate's Court on matters of fact and law and to the High Court on matters of law.”

36. From the foregoing, although the High court has jurisdiction to hear matters relating to the violation, infringement, and denial of rights arising from the Constitution, the Constitution itself, in furtherance of these rights, provides for the enactment of legislations. The Constitution serves as the fundamental legal framework of a nation, providing the overarching principles upon which the entire legal system is built. In order to ensure the practical and effective enforcement of these constitutional imperatives, the Constitution empowers the legislature to enact specific laws. It is through the process of legislative enactment that the Constitution's ideals are translated into legal principles, ensuring the smooth functioning of the legal system.

37. Section 12 of the Act provides the proper statutory avenue for the appellant to seek remedy in the circumstances at hand. It outlines the procedure for challenging electoral issues related to voter registration or the absence thereof, specifying the available remedies and the appropriate forum for determining such challenges. Given this legislative framework, that provides an alternative dispute resolution mechanism, it is clear that the appellant ought to have exhausted the prescribed process under this section, rather than bypassing the designated forum and bringing the dispute matter directly to the High court.

38. The doctrine of exhaustion of administrative remedies, also known as the principle of exhaustion of alternative remedies, requires individuals to pursue all available administrative remedies before reaching out for judicial intervention. The doctrine was alive and well before the Constitution 2010, as can be seen in Speaker of National Assembly vs Karume (1992) KLR 21 where it was stated that:“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”

39. The doctrine is now a constitutional imperative under Article 159(2)(c) of the 2010 Constitution, as demonstrated in emerging jurisprudence. For example, in Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR the Court of Appeal explained as follows:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the court 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. The ex parte Applicants argue that this accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution”

40. Furthermore, Section 3 of the Act sets out the fundamental requirements for exercising the right to vote, specifically mandating that an adult citizen must be registered in the register of voters to exercise this right. Since the appellant alleged that he was not in the Register of voters, he fails to meet the essential prerequisite under Section 3 of the Act, to bring a petition claiming the violation of his right to vote. In light of these statutory provisions, it is clear that the appellant did not follow the appropriate legal recourse and lacked the locus to bring the petition before the High court in the first instance.

41. Having considered the arguments advanced by the two sides, we are satisfied that the P.O raised was on a pure point of law, on the proper legal process provided under Section 12 of the Act for the resolution of the kind of dispute now before us. It is therefore our finding that the decision of the learned Judge cannot be faulted.

42. To answer the second issue on whether the High court erred in condemning the appellant to bear the costs of the petition, we find some solace in the decision rendered by the Court of Appeal in Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR (Civil Appeal 85 of 2006), where the Court stated as follows:“Costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order.”

43. This position was further expounded in the Supreme Court ruling in Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR) where the court held that;“Whereas the court had discretion when awarding costs, that discretion had to be exercised judicially. The first point of reference, with respect to the exercise of discretion was the guiding principles provided under the law. In matters of costs, the general rule was that costs follow the event unless the court was satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the court decided not to follow the general principle, the court was enjoined to give reasons for not doing so.….. the object of ordering a party to pay costs was to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure. Costs were a means by which a successful litigant was recouped for expenses to which he had been put in fighting an action.”

44. Considering these established precedents, we are satisfied that the decision of the High court to condemn the losing party to bear the costs was both sound and justifiable. We see no compelling reason in the case before us to cause us to disturb the well-settled principle that costs follow the event.Consequently, the appeal filed by the appellant is found to be lacking in merit and is hereby dismissed.Costs are awarded to the respondents.

DATED AND DELIVERED AT KISUMU THIS 4TH DAY OF APRIL, 2025H. A. OMONDI..............................JUDGE OF APPEALL. KIMARU……..……………….JUDGE OF APPEALL. ACHODE............................JUDGE OF APPEALI certify that this is a true copy of the original SignedDeputy Registrar