[2022] KEHC 3224 (KLR)

Nga'ng'a v Independent Electoral and Boundaries Commission (Judicial Review Miscellaneous Application 3 of 2022) [2022] KEHC 3224 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3224 (KLR)

Republic of Kenya

In the High Court at Kiambu

Judicial Review Miscellaneous Application 3 of 2022

RB Ngetich, J

July 15, 2022

IN THE MATTER OF AN APPLICATION BY DUNCAN NJENGA NG’ANG’A FOR LEAVE TO SEEK JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF THE NOMINATION OF MEMBER OF THE NATIONAL ASSEMBLY, KABETE CONSTITUENCY AND IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010, FAIR ADMINISTRATIVE ACTION ACT, INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT AND ELECTION ACT

Between

Duncan Njenga Nga'ng'a

Applicant

and

Independent Electoral and Boundaries Commission

Respondent

Judgment

1. The applicant filed application dated 4th July, 2022 under certificate of urgency in the Milimani High court. The file was transferred to this court on 5th July 2022. In the application, the applicant sought the following orders: -i.Leave to file for orders of certiorari to quash the Respondent’s decision dated 20th June 2022ii.An order Mandamus compelling the Respondent to discharge its constitutional and statutory duties by admitting the Applicant’s nomination to participate in the General Elections slated for 9th August, 2022 as a candidate for the position of member of National Assembly, Kabete Constituency.

2. The matter was placed before this court on 6th July, 2022. I granted leave to apply for an order of Certiorari quashing the Respondent’s decision dated 20th June 2022 and leave to apply for an order of Mandamus compelling the Respondent to discharge its constitutional and statutory duties and the main application be served on the respondent within three (3) days and directions to be given on 12th July, 2022.

3. Pursuant to the leave granted on 6th July 2022, the applicant filed the Substantive motion on 8th July 2022. On 12th July 2022 there was no appearance of the parties in court. The court further directed the matter be mentioned on 13th July 2022.

4. On 13th July, 2022 only the applicant attended court. Upon perusal of the Affidavit of Service sworn on 12th July 2022 and filed on 13th July 2022, the court noted the Respondent received the mention notice at 2. 15p.m under protest citing notice was too short. The court indulged the respondent and fixed the matter for hearing on 14th July 2022. The respondent was directed to file their response by 14th July, 2022. The applicant was directed to serve the respondents with the directions by close of business on 13th July 2022.

5. The Applicant averred that he submitted his candidate symbol in form 11 p in both hard and soft copy and the same was gazetted on 13th May 2022; and on 30th May 2022, he presented himself for clearance but he was turned away for lack of enough signatures. He again presented himself on 31st May, 2022 but was also turned away on the ground he did not have printed copies of his campaign schedule and candidate symbol. He averred that he amended his symbol using the laptop of the Returning officer as the returning officer verified other documents.

6. He further averred that he went to have the symbol printed out and due to power blackout in Kabete area, he managed to return to the returning officer at Bishop Kariuki ACK Church at 4. 15 P.M. and he was turned away on the ground that he was late in submitting his symbol.

7. Aggrieved by the decision of the Returning Officer, the Applicant filed a complaint on 1st June 2022 before Respondent Dispute Resolution committee(DRC) challenging the decision of the Constituency Returning Officer for Kabete Constituency invalidation of his nomination to contest as an independent candidate for the position of Member of the National Assembly, Kabete Constituency in the general elections slated for 9th August 2022.

8. On 20th June 2022, the Respondent Dispute Resolution Committee delivered a decision dismissing the Applicant’s complaint with the committee as follows: -a.The complainant failed to present himself before the returning Officer within the gazette time for registration.b.The complainant failed to comply with Regulation 10(3) of the elections General Regulations, 2012 by failing to submit his symbol in an electronic and print format.c.The complaint lack merit.

9. It is on the decision of the Dispute Resolution Committee that the applicant filed the current petition seeking the following orders: -a.Judicial review order of certiorari quashing the decision of the dispute Resolution Committee.b.An order of Mandamus compelling the Respondent to discharge its constitutional and statutory duties admitting the Applicant’s nomination to participate in the general elections slated for 9th August 2022 as a candidate for the position of member of National assembly, Kabete Constituency.c.That costs for this application be provided for.

10. The respondent opposed the application herein by filing replying affidavit sworn by Chrispine Owiye Director of Legal Services of IEBC on 14th July 2022. He averred that despite the Exparte Applicant failed to present his all documents required for clearance before the Returning Officer on time. He further averred that the documents he failed to present in time are Exparte Applicant’s symbol and campaign schedule and added that, regulation 10(3) of Election(General) Regulations 2012 require the symbol to be presented both in electronic and print format and attach the said regulations to the replying affidavit.

11. He further averred that the Gazette Notice No.431 dated 20th January 2020 stipulated timelines for registration of political party candidates and independent candidates for National Assembly Election being between 29th May 2022 and 31st May 2022; and further averred that the Exparte applicant has admitted that he presented his papers to the Returning Officer Kabete Constituency on 31st May 2022 at around 4. 15 p.m.

12. He further averred that regulation 43(2) of Election (General) Regulations 2012 provide in mandatory terms that the Returning Officer shall hold a nomination paper invalid if presented after the prescribed period; and invalidation of the Exparte applicant’s nomination papers by the Returning Officer were premised on provisions of law which are mandatory being Exparte applicant’s failure to observe timelines for presentation of nomination papers as gazette by the respondent.

13. He averred that the application is devoid of merit, frivolous and vexatious and is meant to persuade this court to overlook the express provisions of law; that the Exparte applicant has not proved the grounds of illegality, irrationality and procedural impropriety against the decision of the respondent’s Dispute Resolution Committee to warrant grant of prayers sought; that the application lacks any foundation in law or fact and is an abuse of the process of judicial review before this court and should be dismissed with costs.

14. In view of limited within which to hear and concluded election related matters directions were given for counsels herein to canvass the application by way of oral submissions on 14th July 2022 at 2. 00 p.m.

Submissions by Counsel for the Exparte Applicant 15. Mr. Simuyu counsel for the Ex-parte applicant, submitted that the undisputed facts of this judicial review is that the Applicant went for clearance on 31st May 2022 at the Bishop Kariuki ACK House and he was turned away for 2 reasons namely: -1. Failure to have a printed copy of his candidate symbol and2. Failure to have a printed copy of his campaign schedule.

16. Counsel submitted that the Returning Officer indulged the applicant to update the soft copy version of his campaign schedule, which the applicant did and upon going to have the same printed, he was faced with the challenge of the power blackout in the Kabete Constituency and he made efforts to have the same printed at Kikuyu Town; and was able to present the documents at 4. 15 P.M and was just 15 minutes late but was turned away by the Returning Officer prompting him to file complaint before the Respondent’s Dispute Resolution Committee.

17. Counsel submitted that Ex-parte applicant explained that his party symbol had previously been submitted to the Independent Election and Boundaries Commission and the same had been gazetted as the symbol to be used by the Ex-parte applicant in the General Elections. A copy of the gazette notice dated 13th May 2022 was annexed to Exparte applicant’s verifying affidavit on pages 6 to 8 of the verifying affidavit and added that gazettement was done two weeks away from the deadline.

18. He further submitted that the requirement for the Ex-parte applicant to submit the printed version of the symbol was the second time and the time the applicant was turned away for not having a hard copy version he had a soft copy version of the symbol with him.

19. Counsel submitted that there is no requirement under the law requiring a candidate to submit campaign schedule and the checklist provided by the IEBC annexed to Page 9-10 of the Ex-parte applicant verifying affidavit did not provide for independent candidates to have a campaign schedule either in print or soft copy.

20. Counsel further submitted that the delay in submitting the nomination papers was occasioned by the request by the Returning Officer for the Ex-parte applicant to update the campaign schedule.

21. He submitted that the averments by the Ex-parte applicant in the verifying affidavit remain uncontroverted and the Independent Election and Boundaries Commission Dispute Committee focused on the delay of fifteen (15) minutes and failed to look at the merits of the case on whether the request for the symbol for a second time amounted to calling the candidate to comply with something already complied with.

22. Counsel cited the case of Harun Mwandali Mwaeni vs IEBC& Anor Nai Election Petition Appeal No 98 of 2017, where the court urged the court and tribunals handling election matters to be flexible and consider reasons for delays. He submitted that in the above case, the candidate had delayed submitting nomination papers on account of insecurity for a day and the court proceeded to hold that the Respondent’s decision of refusal to condone the petitioner for the delay in adhering to the timelines was unreasonable and contrary to the Constitution.

23. Counsel further submitted that other than for the two (2) documents, the Ex-parte applicant would have been cleared and argued that the campaign schedule is not a requirement provided for under the Constitution or any election statute and therefore IEBC cannot purport to fail to clear the Ex-parte applicant for not having a campaign schedule.

24. Counsel further cited the case of Hon Mike Sonko Mbuvi Gideon Kioko v IEBC & Others Mombasa Petition E027 of 2022 where the court emphasized IEBC has no power to demand additional requirements beyond those provided for under the Constitution and statute.

25. Counsel urged this court to find the decision of 20th June, 2022 by IEBC is tainted with irrationality, illegality, and procedural impropriety as the Ex-parte applicant had previously submitted his candidate symbol to IEBC and the same was already gazette by the Independent Election and Boundaries Commission. He prayed for orders sought.

Respondent’s Submission 26. In response, Ms. Nyarango counsel for the Respondent submitted that their submissions are two fold as hereunder: -i.Whether the applicant submitted all the required documents to the Returning Officer.ii.On the campaign schedule.

27. Counsel submitted that the Returning Officer invalidated the clearance on the ground that the applicant failed to furnish a copy of the symbol as enshrined in regulation 10(3) of Elections (General) Regulation. She further submitted that contrary to the averments by counsel for the Ex-parte applicant that the requirement had already been complied with, the gazettement only gazette the symbol but candidates were required to present a hard copy of the same during the clearance of the candidate and this did not amount to a repeated exercise but the same was a requirement for all candidates.

28. On the second issue, she argued that the applicant submitted the campaign schedule and cannot again come to court to counter that the same was not a requirement and submitted that the Ex-parte applicant was given sufficient time to submit the same but he failed to do so.

29. She submitted that Ex-parte applicant failed to submit his nomination papers on time which he admitted and as per the Verifying Affidavit, it is clear the Returning Officer gave the Ex-parte applicant sufficient time to present his nomination papers before the deadline.

30. Counsel further submitted that there was a gazettement of the specific timelines for the presentation of nomination papers being 8. 00 am to1. 00 pm in the morning hours and 2. 00 pm to 4. 00 pm in the afternoon hours from 29th May to 31st May 2022 but the Ex-parte applicant has by his own admission stated that he failed to submit his nomination papers before the gazetted timeline considering 31st May 2022 was the last day of the gazette timelines.

31. She submitted that the Returning Officer is duty bound in mandatory terms to adhere to strict timelines and therefore, the Returning Officer acted within the mandate by invalidating the nomination papers submitted by the applicant outside the gazetted timelines.

32. She further submitted that the Ex-parte applicant had admitted the requirement for the production of printed copies of the symbol and campaign schedule as the reasons for the delay and was therefore well aware of the requirement that they were mandatory but failed to submit the same.

33. She submitted that the Returning Officer or the IEBC cannot be faulted for omission of the Exparte applicant and urged this court to find the decision of IEBC is not illegal for following provisions of the law, not irrational and there is no evidence of procedural impropriety to warrant the granting of the orders; and cited the case of Protus Waswa Wafula v IEBC (2017) eKLR where the court stated that all parties seeking nomination must adhere to the set regulations including the timelines the court held the invalidation of the candidate was based on proper ground.

34. Further that, the decision of the Dispute Resolution Committee that held the Ex-parte applicant failed to submit the required documents within the required timelines was sound and there is no need for a review by this honorable court.

35. In a brief rejoinder, counsel for the Ex-parte applicant argued that counsel for the Respondent has failed to mention any law that provide for the requirement of a campaign schedule to be presented to IEBC. That regulation 10(3) of Election (General) Regulations require a candidate to submit their symbol, which the Ex-parte applicant candidate had submitted in form 11p which led to the gazette notice of 13th May 2022 and the averment is not contradicted before this honorable court.

Analysis and Determination 36. It is not disputed that the applicant submitted his nomination papers to the Returning Officer on the last day for submission of nomination papers by candidates for position of Nation Assembly, Kiambu being 31st May 2022.

37. In his averments, the Exparte Applicant stated that he submitted the nomination papers at 4. 15 pm while the Returning Officer in his affidavit before the Dispute Resolution Committee said it was 4. 32 pm. It is not disputed that the Gazetted deadline was at 4. 00 p.m. the same day. He was therefore late for between 15 to 32 minutes on the last day of registration 31st May 2022. The Returning Officer invalidated the Exparte Applicant’s nomination for failing to submit two documents, his symbol and campaign schedule both in soft and print form within the gazette timelines.

38. Upon hearing the Exparte applicant’s complaint challenging the Returning Officer act of invalidating his nomination, the Respondent’s Dispute Resolution Committee upheld the Returning Officer’s decision.

39. I have considered averments by parties herein, oral submissions by counsel, legal provisions and authorities cited and find the following as issues for determination: -i.Whether the decision by DRC was illegal, irrational and procedurally defective.ii.Whether the Exparte applicant deserve the prayers sought.

(i) Whether the decision by DRC was illegal, irrational and procedurally defective 40. The Exparte applicant argued that he had presented his symbol form 11P before gazettement of candidates and symbols which was done on 13th May 2022 and it was unnecessary for the Returning Officer to ask him to present the print copy on 31st May 2022; and further, there is no legal requirement to present campaign schedule neither did the respondent included the requirement for campaign scheduled in its checklist.

41. The Exparte applicant averred that while at the registration center he was asked for print and soft copy of the symbol and campaign schedule and he took sometime amending the campaign schedule using the Returning Officer’s laptop before going to print the two documents. He averred that he was late for 15 minutes in returning due to power blackout in Kabete area necessitation his travel to Kikuyu town to print the documents.

42. On the issue of candidate’s symbol, I have perused gazette notice dated 13th May 2022 and note that it has a list of candidates with their symbols. The Exparte applicant is listed as number 313 and his symbol is indicated in the last column. The Exparte applicant averred that the submission of the symbol for Gazettement was in form 11p both in soft and hard copy. This is the same requirement in the checklist attached to the verifying affidavit. The respondent has not controverted the Exparte applicant’s averment to the effect that he submitted the symbol in that format. Even though listed in the checklist, the symbol was already with the respondent in the required format.

43. In my view, even though the Exparte applicant made attempts to resubmit in the same format, the requirement was unnecessary and it should not have been the basis for invalidation of the Exparte applicant’s nomination.

44. And even if I were to consider that the candidates were resubmitting and the applicant was required to submit again, with explanation for the delay of 15 minutes, it was unreasonable to invalid the Exparte applicant’s nomination in the circumstances.

45. In respect to campaign schedule, I have perused the checklist attached and it is not listed. No legal provision has been cited by the respondent requiring campaign schedule to be submitted at the time of registration. It should not have been therefore a ground to invalidate the Exparte applicant’s nomination.

46. The Returning Officer also never disputed the Exparte applicant’s averment that he had been at the registration centre with the soft copies. And he even used the Returning Officer’s laptop to amend the campaign schedule. There is no doubt that the Exparte applicant spent time amending campaign schedule.

47. I note that the decision of the IEBC committee does not mention failure to present campaign schedule as a reason for invalidate. In my view, they could have failed to consider it as it was not one of the requirements for registration. The Returning Officer has not disputed the Exparte applicant’s averment that he used his laptop to amend the campaign schedule and having found that its presentation was unnecessary.

48. From the foregoing, I find that the Returning Officer’s unnecessary demand for campaign schedule contributed to the 15 minutes’ lateness by the Exparte applicant

49. I have perused election petition number 98 of 2017 HarunMwadali Mwaeni Vs IEBC & Another [2017] eKLR where the court found that the IEBC committee was unreasonable or irrational in view of the evidence that the petitioner had pre-empted and notified the respondent on the possibility of delay due to security situation and it should have taken that into consideration and the extension of time was unlikely to give the petitioner any unfair advantage or even prejudiced the respondent’s preparedness.

50. In the instant case, it is not disputed that the Exparte applicant had been with the Returning Officer and had known he had soft copy of the documents he required and that he had gone to print them. The delay of between 15 to 30 minutes was explained; explanation was unforeseen incident of power black necessitating travel to Kikuyu town from Kabete to print the documents.

51. The 15 minutes’ delay in submitting his symbol which he had submitted earlier was given to the IEBC Dispute Resolution Committee. In my view the short delay was excusable and should not have necessitated invalidation of Exparte applicant’s nomination. The committee should have acted fairly in resolving the complaint raised by the Exparte applicant. I find the committee’s decision irrational and unreasonable in the circumstances.

(ii)Whether the Exparte applicant is entitled to reliefs sought. 52. Having found that the committee acted unfairly and delivered irrational decision, the applicant is entitled to reliefs sought.

Final Orders1. I hereby quash the decision of IEBC Dispute Resolution Committee of 20th June 2022 which upheld decision by Kiambu County Returning Officer which invalidated the Exparte applicant’s nomination as candidate for National Assembly Kabete Constituency.2. An order of Mandamus do issue directing the respondent IEBC to clear/register the Exparte Applicant as a candidate for position of Member of National Assembly, Kabete Constituency.3. No orders as to costs.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS15TH DAY OF JULY, 2022. ..............RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court AssistantMr. Simiyu Counsel for Exparte/ApplicantNo appearance for Respondent