[2022] KEHC 11889 (KLR)

Njau v Gedi & 2 others; United States of America Embassy in Kenya & 3 others (Interested Parties) (Constitutional Petition 10B of 2022) [2022] KEHC 11889 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11889 (KLR)

Republic of Kenya

In the High Court at Garissa

Constitutional Petition 10B of 2022

A Ali-Aroni, J

July 21, 2022

IN THE MATTER OF CLEARANCE OF A CANDIDATE BY IEBC TO RUN FOR A PUBLIC OFFICE WHILE HOLDING MULTIPLE NATIONALITIES

Between

Njau

Petitioner

and

Mohamed Subey Gedi

1st Respondent

Independent & Electoral Commission

2nd Respondent

Attorney General

3rd Respondent

and

United States of America Embassy in Kenya

Interested Party

Principal Secretary State Department of Immigration

Interested Party

Director of Criminal Investigation

Interested Party

Ethics and Anti Corruption Commission

Interested Party

A person with multiple nationalities was not qualified to run for public elective posts

The petition challenged the clearance of the 1st respondent to vie for the seat of Member of Parliament Fafi Constituency in the 2022 general elections on the ground that the 1st respondent held multiple nationalities. The court held that the Constitution permitted citizens of Kenya by birth to have dual citizenship and not multiple nationalities. The court found that the 1st respondent failed to present documents ascertaining that he was indeed a Kenyan citizen to qualify to run for the election. The court thus held that the 1st respondent was in violation of Chapter 6 of the Constitution as read with the Leadership and Integrity Act. The court finally declared that the 1st respondent was not qualified to run for the position of Member of Parliament for Fafi Constituency.

Reported by John Ribia

Electoral Law– elections – eligibility to vie for public elective posts – claim that a person with multiple nationalities was cleared to contest an election for a parliamentary seat in the 2022 general elections - whether a person with multiple nationalities qualified to run for public elective posts.Jurisdiction– jurisdiction of the High Court – jurisdiction of the High Court vis-à-vis the mandate of the Independent Electoral and Boundaries Commission (IEBC) – mandate to certify eligible candidates to vie for public elective posts - whether the High Court had the jurisdiction to consider a case that questioned the eligibility of a candidate to vie for public elective posts on grounds that they had multiple nationalities, considering that the mandate to certify eligible candidates lay with the Independent Electoral and Boundaries Commission - Constitution of Kenya, 2010, article 165. Evidence Law– admissibility of evidence – admissibility of illegally obtained evidence - whether illegally acquired evidence could be admissible on grounds that failing to consider would go against public interest and would violate the values and principles of the Constitution - Constitution of Kenya, 2010, article 50(4); Evidence Act, Cap 80, section 35. Evidence Law– burden of proof– burden of proof in constitutional petitions – principle that burden of proof lay on the one that made an allegation – shift of burden of proof - at what point did the burden of proof placed on a petitioner to prove allegations in a constitutional petition shift to the respondents to disprove the allegations.Constitutional Law- constitutional petitions - constitutional issues - what was the nature of a constitutional issue.

Brief facts The petitioner challenged the clearance of the 1st respondent to vie for the seat of Member of Parliament Fafi Constituency in the 2022 General Elections by the Independent Electoral and Boundaries Commission (IEBC/2nd respondent). The petitioner alleged that the 1st respondent held multiple nationalities. The petitioner presented a copy of the 1st respondent’s Kenyan national identity card, that indicated the 1st respondent was a Kenyan by birth; and copies of the 1st respondent’s American passport and e-visa application that indicated that the 1st respondent’s place of birth was Somalia and further indicated that he was a Somali-American dual national.The 1st respondent questioned the admissibility of the evidence placed before court by the petitioner. He stated that it was illegally obtained and as such was not admissible. The 1st and 2nd respondents also contended that the petition was not pleaded with precision as it did not state the alleged provisions violated and the acts and or omission leading to the alleged violation of the Constitution of Kenya, 2010 (the Constitution). Further no particulars and manner of the contravention or injury to be suffered was demonstrated.

Issues

Whether a person with multiple nationalities qualified to run for public elective posts.

Whether the principle requiring constitutional petitions to be pleaded with reasonable precision was met in the instant petition.

Whether the High Court had the jurisdiction to determine a case questioning the eligibility of a candidate to vie for a public elective post on grounds that he had multiple nationalities.

Whether a passport was a public or private document.

Whether illegally acquired evidence could be admissible on grounds that failing to consider the evidence would go against public interest and would violate the values and principles of the Constitution.

When did the burden of proof placed on a petitioner to prove allegations in a constitutional petition shift to the respondents to disprove the allegations?

What was the nature of a constitutional issue

Relevant provisions of the Law Constitution of Kenya, 2010Article 50 - Fair hearing(4) Evidence obtained in a manner that violates any right or fundamental freedom in the bill of rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.Evidence Act, Cap 80Section 35 - Admissibility of documentary evidence as to facts in issue(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—(a) if the maker of the statement either—(i) had personal knowledge of the matters dealt with by the statement; or(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and(b) if the maker of the statement is called as a witness in the proceedings:Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence—(a) notwithstanding that the maker of the statement is available but is not called as a witness;(b) that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.

Held

The petition had set out the foundation or basis of grievances and facts of the case which were detailed. It articulated alleged violations, had linked the alleged acts and omission to the rights of the petitioner and the people on whose behalf he had petitioned the court and the manner in which the articles concerned him and it thus reasonably met the threshold relating to the requirement that constitutional petitions were to be pleaded with reasonable precision.

A constitutional issue was one which confronted the various protections laid out in the Constitution. Such protections could be with respect to the Bill of Rights or the Constitution itself. The issue had to demonstrate the link between the aggrieved party, the provision of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.

Inasmuch as the issue of qualification in terms of citizenship of a nominee ought to have been considered at the clearance stage by the 2nd respondent, the same was no less a constitutional question, and if for whatever reason the 2nd respondent or any other organs failed to diligently consider the issue or did not fully consider the issue leading to a violation of the Constitution, the court had the duty to consider any such violation, uphold and safeguard the Constitution.

The evidence placed before the court if considered would not be unfair to the administration of justice in any way. The document which had not been denied as being a copy of the 1st respondent’s passport would be of assistance to the court in determining a matter of general public importance, a matter touching on a value and principle espoused by the Constitution. It would place before the court information necessary to see if there was a violation of citizenship. The passport belonged to the 1st respondent; he had not denied it neither had he negated the assumption that it was in his possession. The passport was not a public document and no matter how diligent the petitioner was he could not have gained possession of the same.

The document in question was an individual’s document. Though a passport was a public document so to speak, it was in the possession of the holder. The urgency of the matter required quick action. The Attorney General could not quickly access information from the Department of Immigration services. The information was relevant to the issue in question and necessary in the public interest. Therefore, balancing between the need to access the document and the interest of fair adjudication of the matter and in the circumstances of the instant matter, justice would be done if the secondary evidence was admitted.

Though the 1st respondent did not have the primary duty to present his passport before the court merely because the petitioner spoke of it, the petitioner in the circumstances made a prima facie case, the 1st respondent in his own interest and in the public interest ought to have made the passport available to lay to rest the alleged issue of his multiple nationality and to prove that indeed what he enjoyed was dual nationality. That was a typical case where the burden of proof shifted to the 1st respondent.

Citizenship and representation of citizens were key chapters of the Constitution, they played a major role in the governance structure and would not be taken lightly on the face of allegations of violation of the Constitution. The respondents sat back casually as if in defence of the 1st respondent, without any quick investigation through a multi-agency approach to quickly put information before court to negate or affirm the issue. The petitioner had placed prima facie evidence before court but they came to court with complacency; citing the court’s lack of jurisdiction in an all-important subject touching on the interpretation and protection of the Constitution and state security and one’s allegiance. The evidentiary burden had shifted to them.

Article 3 of the Constitution mandated every person to uphold and defend the Constitution. The petitioner placed his evidence of the 1st respondent’s passport indicating that he was an American born in Somalia in contrast to the information on the Kenyan identity card which information he gave to 2nd respondent that he was born in Garissa County.

The petitioner discharged his legal burden and at that point the evidentiary burden shifted to the 1st respondent to explain whether he was born in Somalia or Kenya and why the conflicting information in the two crucial nationality documents, secondly his connection to Somalia which was in the American passport as opposed to his connection with Kenya which he claimed was his country of birth as well.

The conflicting information in the American passport and the Kenyan national identity card also raised the question of credibility and integrity as espoused in Chapter Six as read with the Leadership and integrity Act. The petitioner in the absence of any evidence to the contrary by the respondents and the 2nd, 3rd and 4th interested parties, placed before court evidence that the 1st respondent was a holder of Somalia/American and Kenyan nationalities and there was violation of the Constitution and or likely violation and /or threat to the Constitution and the law.

The Constitution permitted citizens of Kenya by birth to have dual citizenship and not multiple nationalities as was the case of the 1st respondent . The acts and /or omissions of the 2nd and 3rd respondents, the 2nd, 3rd and 4th interested parties failed their mandate and their obligations under the Constitution and statute. The 1st respondent failed to present documents ascertaining that he was indeed a Kenyan citizen as prescribed by the Constitution and electoral laws to qualify to run for the seat of Member of Parliament for Fafi Constituency. The 1st respondent was in violation of Chapter 6 of the Constitution as read with the Leadership and Integrity Act. The petitioner was within his rights as a Kenyan for himself and the public good to move the court.

Petition allowed.

Orders

Declaration issued that the acts and /or omissions of the 1st and 2nd respondents, were unconstitutional, null and void ab initio.

Declaration issued that the 1st respondent was not qualified to run for the position of Member of Parliament for Fafi Constituency.

The 2nd respondent was ordered to withdraw its clearance certificate issued to the 1st respondent to run for the seat of Member for Parliament for Fafi Constituency.

The 2nd respondent was ordered not to print or to cause to be removed the name of the 1st respondent in the ballot papers of the elections scheduled for the August 9, 2022 for Fafi Constituency.

The 1st respondent was to meet the costs of the petition.

Citations Cases Abdikadir Salat Gedi v Principal Registrar of Persons & Commissioner for Refugee Affairs (Judicial Review Miscellaneous Application 15 of 2012; [2014] KEHC 5714 (KLR)) — Explained

Anarita Karimi Njeru v Republic (Criminal Appeal 4 of 1979; [1979] KECA 12 (KLR))

Bishop Donald Kisaka Mwawasi vs A.G. & 2 Others ([2014] eKLR) — Explained

Communications of Kenya & 5 Others vs Royal Media Services Limited & 5 Others ([2014] eKLR) — Explained

Daniel Ogwaka Manduki vs D.P.P. & 2 Others ([2019] eKLR) — Explained

Dennis Gakuu Wahome vs IEBC & 3 Others (Nrb Petition No. E321 of 2022 (unreported)) — Explained

Godfrey Paul Okutoyi & Others V Habil Olaka & Another ([2018] eKLR) — Explained

Kinyanjui Kamau vs George Kamau ([2015] eKLR) — Explained

kiya Omtatah Okoiti & Another vs the A.G. & Another Consolidated with LSK vs A.G & 6 Others (Civil Appeal No. 13 of 2015) — Explained

Mahamud Muhumed Sirat v Ali Hassan Abdirahman & 2 others (Petition 15 of 2008; [2010] KEHC 2287 (KLR)) — Explained

Mumo Matemu v Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission (Civil Appeal 290 of 2012; [2013] KECA 445 (KLR)) — Explained

Mustafa Tobiko Ole Tampul v Hassan Ole Naado & 17 others (Constitutional Petition E287 of 2020; [2021] KEHC 3954 (KLR)) — Explained

Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs, Attorney General & National Assembly of Kenya (Petition 367 of 2019; [2019] KEHC 2293 (KLR)) — Explained

Nicholas Randa Owano Ombija v Judges and Magistrates Vetting Board (Civil Appeal 281 of 2015; [2015] KECA 129 (KLR)) — Explained

Njonjo Mue & Khelef Khalifa v Chairperson Independent Electoral and Boundaries Commission, Independent Electoral and Boundaries Commission, Uhuru Muigai Kenyatta & Edward Kings Onyancha Maina [2017] eKLR (Election Petition 4 of 2017; [2017] KESC 6 (KLR)) — Explained

Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); With Kenya Human Rights Commission & another (Amicus Curiae) (Petition 229 of 2012; [2012] KEHC 2480 (KLR)) — Explained

Vijay Morjaria v Nansingh Madhusingh Darbar & Hulashiba Nansingh Darbar (Civil Appeal 106 of 2000; [2000] KECA 14 (KLR)) — Explained

Wahome v Independent Electoral and Boundaries Commission & 3 others; Ford Kenya & 3 others (Interested Party) (Constitutional Petition E321 of 2022; [2022] KEHC 11447 (KLR)) — Explained

Statutes Constitution of Kenya, 2010 — Article 3(1); 10; 14(1); 16; 22(1); 24; 39; 50(4); 78(2); 99(1)(b); 165; 258 — Interpreted

Evidence Act — Section 35(2)(b); 108; 109; 112 — Interpreted

Kenyan Citizenship and Immigration Act — Section 23 — Interpreted

Leadership And Integrity Act — Section 13, 31(2) — Interpreted

Registration of Persons Act — Section 13 — Interpreted

AdvocatesNone mentioned

Judgment

1. The petitioner, Nicholas Waitito Njau is challenging the clearance of the 1st respondent Mohamed Subey Gedi to vie for the seat of Member of Parliament Fafi Constituency in the forthcoming- General Elections by the 2nd respondent, the Independent Electoral & Boundaries Commission and allegedly the 1st respondent holds multiple nationalities contrary to the law. It is his case that the respondents are in violation of the Constitution by their action.

2. The petitioner contends that the alleged violation of the Constitution arises as the 1st respondent is a Somali-America and at the same time a holder of a Kenyan Identity Card No xxxx as indicated on his certificate of nomination from his Political Party, the Amani Congress Party(ANC) Party. And therefore not qualified to vie for a Parliamentary Seat or hold any public office in Kenya under the Constitution 2010 and related statute and therefore the clearance of the 1st respondent as a candidate for the seat of Member of Parliament Fafi Constituency by the 2nd respondent is unconstitutional, illegal, null and void ab initio.

3. Further the petitioner asserts that the clearance of the 1st respondent by the 2nd respondent to run for the seat of Member of Parliament for Fafi Constituency not only affects his rights, but also the Rights of other voters and he has instituted the suit on his own behalf and in the interest of all the voters in Fafi Constituency and the public at large.

4. The petitioner argues that several constitutional provisions were violated that includeArticle 3(1) - that obligates every person to respect and uphold the Constitution.Article 10 - that establishes the national values and principles of governance that are binding to all State Organs and all persons.Article 16 - that makes provision for Dual Citizenship.Article 22- which Gives right to institute a suit where a right or fundamental freedom has been denied, violated, infringed or threatened.Article 78 - which states that a person is not eligibility for election and appointment to a State or public office unless the person is a citizen of Kenya. It further states that a a state officer shall not hold dual citizenship.Article 99(1)(b) qualification to the position of Member of Parliament includes where the person satisfies any educational, moral and ethical requirements.Article 258 – where any person may institute proceedings claiming a breach or violation of the Constitution.Section 23 of the Kenyan Citizenship and Immigration Act.Section 13 of the Leadership and Integrity Act as read with article 99(2)(b).Section 24 of the Election Act 2011

5. The petitioner, who is a registered voter in Fafi Constituency aggrieved by the action of the respondents, in his petition dated June 22, 2022 is seeking for; -a.A declaration that the action and/or omission of the 1st and 2nd respondents is unconstitutional, null and void ab initio.b.A declaration that the 1st respondent in unqualified to run for or to be appointed to a public office in Kenya by virtue of Holding multiple nationalities.c.An order directing the 2nd respondent to withdraw its certificate of clearance issued to the 1st respondent to run for office of Member of Parliament in Fafi Constituencyd.An order of permanent injunction barring the 2nd respondent from gazetting the 1st respondent as a candidate for the position of member of Parliament in Fafi Constituency in the August 9, 2022 General Elections.

6. In support of the petition the petitioner filed an affidavit wherein he reiterated the grounds in his petition and added that a search at the Kenya’s Directorate of Immigration and Citizen’s services has confirmed that the respondent is the holder of an American Passport No 504342841.

7. All the respondents save for the 3rd respondent vehemently opposed the petition. The 1st and 3rd interested parties did not make any appearances nor file responses. The 4th interested party filed a replying affidavit merely stating the law.

8. In his replying affidavit the 1st respondent in addition to his averments that this court lacks jurisdiction to entertain this matter, (which issue was dealt with in an interlocutory application) stated that he is a citizen of the Republic of Kenya and had submitted all his relevant documents according to the Constitution, the Election Act and, the Elections (General) Regulations, 2012. Further, he was duly nominated by his party and thirdly, cleared by the 2nd respondent as a candidate for the seat of Member of Parliament for Fafi Constituency.

9. On behalf of the 2nd respondent, Chrispine Owiye, the Director Legal and Public Affairs swore an affidavit dated July 14, 2022 where he deposed that pursuant to its constitutional and statutory mandate the 1st respondent gave instructions to all its Returning Officers who were receiving documents from persons with intentions of vying for Member of Parliament a list of all requirements set out by the Constitution, the Election Act and the Election (General) Regulations 2012.

10. The said checklist required candidates to submit original identification documents at the time of Registration alongside the other requisite documents. In the case of the 1st respondent he submitted his national Identity Card No xxxx and on the face of the Identity Card he was born in Garissa District, Sankuri Division and therefore a Kenyan by birth.

11. Further he deposed that the 4th respondent found the Identity Card presented in support as proof that the 1st respondent herein is a Kenyan Citizen by virtue of section 13 of the Registration of Persons Act which provides that an Identity card is prima facie evidence of citizenship.

12. Further the Commission has not been presented with any facts to the contrary by the Registrar of Persons to show that the 1st respondent is not a citizen of Kenya.

13. He asserted further that the petitioner herein has not taken any steps to seek information from the Registrar of Persons, the Director of Criminal Investigations, or the relevant embassy to prove that the 1st respondent is not a citizen of this country, or falls short to qualify as regards his citizenship status.

14. He contended that this is a court of law and not an investigative body and the petitioner and the court cannot ascertain the documents placed before it which indeed do not meet the rules of evidence. The petitioner ought to engage organs charged with investigative mandate.

15. On the part of the 3rd respondent grounds of position filed were withdrawn at the hearing of the petition.

16. The 4th interested party filed a replying affidavit sworn by Patrick Owiny on 4th of July 2022, he described himself as an Advocate of the High Court, Director, Ethics and Compliance at the 4th interested party, Ethics & Anti-corruption Commission (EACC).

17. He informed the court that part of his work includes the responsibility of overseeing enforcement of chapter six of the Constitution, Leadership and Integrity Act and other related laws which includes investigations into ethical breaches and violations of code of conduct for both State officers and Public officers.

18. He further confirmed that the 4th interested party is in receipt of a complaint that the 1st respondent is a holder of multiple nationalities and the said complaint is under active investigations, further he stated the 4th interested party is aware that the 1st respondent is a candidate in the forthcoming General election.

19. He deposed further that article 78(2) of the Constitution provides that a state officer shall not hold dual nationality and that section 31(2) of Leadership and Integrity Act provides that where such a person is elected he is upon election to officially renounce the other citizenship.

20. The petition was canvassed by way of written submissions. The court is grateful to counsel for the parties for having worked on overdrive mode, having to file some of the pleadings and indeed submissions on short notice, attributed to the urgency of the matter. Their submissions have greatly assisted the court that faced similar situation, having to burn the midnight oil to meet the dictates of the election calendar for this and other like matters.

Submissions Petitioner’s Submissions 21. There are 2 issues for determination;a.Whether the principal of Anarita Karimi Njeru case requiring constitutional Petitions be pleaded with reasonable precision was met.b.Whether the clearance of the 1st respondent by the 2nd respondent to run for a public office was undertaken in accordance with the Constitution and the law.

22. Counsel in answer to whether the petition before court meets the threshold for constitutional petitions of being set out petitions with “reasonable” degree of precision and by being properly framed, being concise and elaborate referred the court to two classical cases on the subject, the cases of Anarita Karimi Njeru v Republic (1979)eKLR & Mumo Matemo v Trusted Soceity of Human Rights Alliance & 5 others [2013] eKLR.

23. On the 2nd issue, counsel urged that article 16 of the Constitution only envisages dual citizenship and the concept of multiple nationality is novel.

24. It was further contended that the 1st respondent failed moral and ethical requirements of chapter six and article 10 of the Constitution of Kenya as read with articles 99(1) of the Constitution and the Leadership and Integrity Act by failing to disclosed that he enjoyed multiple citizenship.

25. As to the 2nd respondent, it urged that it erred in judgement and in law to allow the 1st respondent to run for a public office while holding multiple nationalities. Counsel distinguished the case of this case from Bishop Donald Kisaka Mwawasi v AG & 2 Others Civil Appeal No 280 of 2013 & Mwende Maluki Mwinzi vs Cabinet Secretary, Ministry of Foreign Affairs & 2 others [2019] eKLR . She submitted that in the cited cases the subject before court was that of dual citizenship; two Nationalities whereas the case before court the 1st respondent has three Nationalities.

26. Counsel further contended that no court had previously dealt with the issue of multiple nationality, it is a novel issue. Further this court has the jurisdiction to determine the Petition under article 165 of the Constitution, to preserve and up hold the authority of the Constitution.

27. As to whether the evidence placed before court is admissible, counsel referred the court to section 35 (2) (b) of the Evidence Act on admissibility of secondary evidence and the common low position in the cases of Regina v Leetham as adopted in John Muriithi & 8 others vs Registered Trustees of Sisters of Mercy (Kenya) t/a “The Matter Misericordiae Hospital” & another [2018] eKLR and urged the court to exercise discretion similarly.

28. Equally the court was requested to consider the time frame which is tight in election matters as to allow obtaining of original documents.

1St Respondent’s Submissions 29. Counsel for the 1st respondent identified 2 issues;i.Whether the petitioner has discharged the evidential burden required in a constitutional petition.ii.Whether the holder of a dual/or multiple citizenship is eligible to seek nomination for election as a Member of Parliament.

30. On the first issue counsel submitted that it is a principle of Law that whoever lays claim of a fact before court against the other has the burden to prove the same. He referred the court to sections 107 and 108 of the Evidence Act which states;“107. (1)Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of a fact which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”

31. Counsel further urged that the petition is defective as no proof of constitutional violation was placed before the court nor any constitutional issue raised. He referenced to the case of Mustafa Tobiko Ole Tampul v Hassan Ole Naado & 17 others [2021] eKLR.

32. Further counsel submitted that the document exhibited as the 1st respondent’s American passport is not legible, the petitioner has not disclosed how he came across the same and has not laid basis for its admissibility; the document has failed the admissibility test. The court in this regard was referred to the case of Mohammed Mohumed Sirat v Ali Hassan Abdirahman & 2 others [2010] eKLR and Hassan Ahmed Ibrahim vs Kenya National Bureau of Statistics & 2 others [2019] eKLR.

33. On the second issue counsel submitted that the 1st respondent is a Kenyan citizen and had submitted all the relevant documents for his clearance in accordance with the Constitution, and the Electoral Laws.

34. He contended further the 2nd respondent has not summoned the 1st respondent to answer to any issues nor has there been any complaint against the 1st respondent to the 2nd respondent.

35. Further the 1st respondent enjoys political rights as stipulated on article 39 and 78(2) of the Constitution and article 99 of the Constitution does not expressly disqualify a dual citizen from vying for the seat of Member of Parliament.

36. The petition is not justiciable as there is no bar for the nomination of the 1st respondent as a nominee for ANC Party for the seat of Member of Parliament for Fafi Constituency.To this end reference was made to the case of Bishop Donald Kisaka Mwawasi v AG & 2 others (supra), Mwende Maluki Mwinzi v Cabinet Secretary, Ministry of Foreign Affairs & 2 others (Supra) and article 31 of the Leadership and Integrity Act

2nd Respondent’s Submissions 37. The 2nd respondent in its part submitted stated that it cleared the 1st respondent to vie as a Member of Parliament on the grounds that;(a)The 1st respondent is a citizen of Kenya by birth pursuant to chapter 3 of the Constitution of Kenya under article 14. (b)That the 1st respondent was nominated by ANC Party to contest for the seat of Member of Parliament for Fafi Constituency and issued with nomination certificate by said Party pursuant to article 99 of the Constitution.(c)That the 1st respondent submitted to the 2nd respondent all qualification documents under article 99 of the Constitution.

38. It was further submitted that the Identify Card is prima facie evidence of one’s nationality. Citizenship is a right not limited under article 24 of the Constitution and further Citizenship is acquired through birth or registration.

39. It was further contended by the 2nd respondent that the 1st respondent placed before it Identity Card, mandated and issued by Office of Registrar of Persons. In this regard the court was referred to the case of Miguna Miguna v Fred Okengo Matiang’i, Cabinet Secretary, Ministry of Interior & Cordination of National Government & 6 others; National Commission of Human Rights (Interested Party) [2018] eKLR & Bishop Donald Kisaka Mwawasi v AG & 2 others (supra)

40. Counsel equally urged that the petitioner has failed to discharged the burden of proof and the requisite standard of proof and in this regard referred to sections 109 and 112 of the Evidence Act dealing with burden of proof in cases of fraud & the cases of Vijay Morjaria v Nansigh Madhu Singh Darbar & Another [2000] eKLR , Kinyanjui Kamau v George Kamau [2015]eKLR & Dennis Gakuu Wahome v IEBC & 3 others Nrb Petition No E321 of 2022 (unreported).

41. Further, counsel contended that the petitioner failed to engage the relevant Agencies better placed to interrogate the allegation of multiple citizenship. Reference was made to Abdikadir Salat Gedi v Principal Registrar of Persons & another (2014)eKLR

42. Further the application is premature as a report was made to EACC & DCI, the said bodies ought to investigate and prosecute the petitioner should the need arise. Reference was made to Daniel Ogwaka Manduki v DPP & 2 Others [2019] eKLR.

43. Counsel equally asserted that this court cannot determine the central issue which is the alleged fraud as that is the purview of the criminal justice system. Case referred to in this regard is that of William Kabogo Gitau v Ferdinand Ndung’u Waititu.

44. Further the petition falls short of the Anarita Karimi Njeru case and Trusted Society of Human Rights Alliance v AG & 2 others High Court Petition No 229 of 2012. As the petition did not set with precision violations that have affected the rights of the petitioner. Reference was made to Godfrey Paul Okutoyi & others V Habil Olaka & another [2018].

3rd Respondent’s Submissions 45. The Attorney General sought to withdraw grounds of opposition filed. He supported the petition. Further the court was informed that the 3rd respondent had written to the Citizenship & Immigration Department on the issue and was yet to get a response.And that though counsel for the 1st respondent mentioned the required that those who hold dual citizens ought to renounce the other citizenship no indication was made of such intention by the 1st respondent in line with article 78(2) of the Constitution which requires a holder of dual citizenship not to hold public office.

46. The 4th interested party was not represented at the hearing neither were any submissions filed.

Analysis and Determination 47. Having considered pleadings, submissions and authorities filed by all parties the court is of the view that there are three issues for determinationi.Whether the principle in the Anarita Karimi Njeru case requiring constitutional petitions be pleaded with reasonable precision was met.ii.Whether the petitioner discharged the legal and evidential burden of proof required in a constitutional petitions.iii.Whether the clearance of the 1st respondent by the 2nd respondent to run for a public office was undertaken in accordance with the Constitution and the law.

48. The first issue for consideration is whether the petition before has been pleaded with reasonable precision. the 1st and 2nd respondents submitted that the petition was not raised with precision as it did not state the alleged provisions violated and the acts and or omission leading to the alleged violation of the Constitution. Further no particulars and manner of the contravention or injury to be suffered was demonstrated. This was however negated by counsel for the petitioner who contended that the articles of the Constitution contravened were cited and the violations well-articulated.

49. In the all-time classic case of Anarita Karimi Njeru v Republic (supra) E Trevelyan & AR HanCox JJ laid the precision rule in the following terms;“……. we would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a degree of precision that of which he complains, the provisions said to be infringed and the manner they are alleged to be infringed.”

50. And in the notable decision of the Court of Appeal, Mumo Matemu v Trusted Society of Human Rights Alliance & 4 others Civil Appeal No 290 of 2014 the court of Appeal reiterated the principles set out in the Anarita case (supra).

51. On this very issue the Supreme Court in Communications of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated thus;“Although article 22(1) of the Constitution gives every person the right to initiate any pleadings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his/or her grievance. This principle emerges clearly from the High Court decision of Anarita Karimi Njeru vs Republic [1979]KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement such principles play a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”

52. The petition more particularly Part B thereof sets out the foundation or basis of grievances and facts of the case are detailed. Part C articulates alleged violations, and Part E has linked the alleged acts and omission to the rights of the petitioner and the people on whose behalf he has petitioned the court and the manner in which the articles concerns him and in view of this court thus reasonably meeting the threshold of the precision rule.

53. The respondents also urged that no Constitution issue arose from the petition. But what is a constitutional issue?. Mrima J in a recent decision Dennis Gakuu Wahome v IEBC & 4 others; Ford Kenya & 3 others (Interested Parties)Nairobi Petition No E321 of 2022 had this to say“……broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in the constitution. Such protections may be in respect to the Bill of rights or the Constitution itself. In any case the issue must demonstrate the link between the aggrieved party, the provision of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.”Judge Mrima considered the holding in Minister of Safety & Security v Luiters (2007) 28 ILJ 133(CC) Where Langa J stated,“...…When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider constitutional rights and values…”

54. Mrima J still in the Dennis Gakuu Wahome case above, quoted the South African Constitutional decision of Fredrick & others v MEC for Education & Training; Eastern Cape & others [2002] 23 LJJ 81 CCC.“The Constitution provides no definition of ‘Constitutional matter’ what is a constitutional matter must be gleaned from a reading of the Constitution itself; if regard is had to the provision of…..Constitution, Constitutional matters must include disputes as towhether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State….the interpretation, application and upholding of the Constitution are also constitutional issues.(emphasize added)So too…..is the question of or the development of the common law promotes the spirit, people and object of the bill of rights. If regard is had to this and to the wide scope and application of the Bills of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislative and structures of government, the jurisdiction vested on the constitutional court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive.”

55. The petition raised the question of Multiple citizenship , leading to the allegation of violation of chapter six of the Constitution as read with article 99(1) of the same, certainly therefore in as much as the issue of qualification in terms of citizenship of a nominee ought to have been considered at the clearance stage by the 1st respondent, the same is no less a constitutional question, and if for whatever reason the 1st respondent or any other organs failed to diligently consider the issue or did not fully consider the said issue leading to a violation of the Constitution this court has the duty bestowed upon it independently by the very Constitution to consider any such violation, uphold and safeguard the Constitution. The High priest and protector of the Constitution is no other entity but the court of law.

56. Having settled on the above the next question for consideration is admissibly of the evidence placed before court by the petitioner. The petitioner produced a copy of the 1st respondent’s American passport and a copy of the 1st respondent’s e-visa application and a copy of his Kenyan Identity card as proof of the alleged multiple Nationalities. The 1st and 2nd respondents questioned how the copies of the said documents were acquired. They contended that the said were acquired illegally, and this in itself is a violation.

57. On the petitioner’s part counsel referred the court to article 50(4) of the Constitution and section 35 of the Evidence Act.Article 50(4) of the Constitution stipulates that“Evidence obtained in a manner that violates any right or fundamental freedom in the bill of rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.”Section 35 of the Evidence Act deals with admissibility of evidence on a fact in issue.Section 35(2) of the said Act Provides that“In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as it mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence(a)………..(b)Notwithstanding that the original document is not produced, it in lieu therefore is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified on the order or the court may be have specified in the order or the court may approve, as the case may be.”

58. The respondent’s counsel in opposition cited Ali Mahamud Muhumed Sirat v Ali Hassan Ibrahim Abdirahman & 2 others Election Petition No 15 of 2008. The above matter referred to elections of 2007 which were done under the old Constitution where dual citizenship was not permissible. A photocopy of the passport was rejected by the court.

59. The said case in view of this court is distinguishable in that the circumstances of the current case are different as the 1st respondent does not deny that he is an American citizen, secondly though the Constitution allows Kenyans by birth to hold dual Nationality it equally prescribes the Conditions of such persons to hold public office does not address the issue of multiple nationalities.

60. This court is prepared to consider the provisions of article 50(4) as read with section 35(2)(b) of the Evidence Act.The evidence placed before the court if considered will not be unfair to the administration of justice in any way, if anything the document which has not been denied as being a copy of the 1st respondent’s passport will be of assistance to the court in determine a matter of general public importance, a matter touching on a value & principle espoused by the Constitution. It will place before the court information necessary to see if there is a violation of an all import subject; Citizenship.

61. This passport in question belongs to the 1st respondent; he has not denied it neither has he negated the assumption that it is in possession. The said Passport is not a public document and no matter how diligent the petitioner was he could not have gained possession of the same.

62. In the case of Nicholas Randa Owano Ombija vs Judges & Magistrates Vetting Board [2015] eKLR the Court of Appeal stated“What does the law state regarding illegally obtained evidence" In the case of Karuna, Son of Kaniu v The Queen [1955] AC 197 which was an appeal to the Privy Council on a criminal conviction anchored on an illegally procured evidence, the Privy Council held that “the test to be applied both in civil and in criminal cases in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained” In that case the Privy Council decision was supported by the decision in Reg v Leatham (1861) 8 Cox CCC 498 which was referred to in the judgment. In Re v Leatham (supra), it was said “it matters not how you get it if you steal it even, it would be admissible in evidence” In Olmstead v United States (1928) 277 US 438 the Supreme Court of the United States of America opined that “the common law did not reject relevant evidence on the ground that it had been obtained illegally.” In Helliwell v Piggot-Sims [1980] FSR 356 it was held that “so far as civil cases are concerned, it seems to me that the judge has no discretion. The evidence is relevant and admissible. The judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning.”There is no doubt that the documents relating to the appellant’s vetting of September 10, 2012 are relevant as his case hinges on them. Common law principles show that evidence if relevant, is admissible even if it has been illegally obtained. The case of Karuna vs The Queen though a criminal case shows that common law principles developed in criminal cases apply.”

63. The Court of Appeal in the decision of Okiya Omtatah Okoiti & another v the AG & another Consolidated withLSK v AG & 6 others Civil Appeal No 13 of 2015. Confronted with the issue of illegally obtained public documents where the court in considering the rival arguments for and against admission of such evidence stated“73. We have considered the rival arguments. This issue brings to the fore the tension between the need for the court to be able to consider and have access to evidence which would enable it to fairly and effectively determine a dispute on the one hand and the need to avoid irregularity or impropriety in the way in which evidence is obtained or secured. In an article titled, The court’s Discretion to Exclude Evidence in Civil Case and Emerging Implications in the Criminal Sphere (2016) 28 SAcLJ, Professor Jeffrey Pinsler, SC put it this way: “…the court must try to give effect to two conflicting public interests: the need for the court to have access to the evidence in the interest of fair and just adjudication and the avoidance of misconduct in the manner of securing evidence. The outcome of the balancing operation depends on the circumstances.”“78. ……..in our view article 50(4) if a court determines that admission of evidence obtained in a manner that violates any right or fundamental freedom in the bill of rights would be detrimental to the administration of justice, the court may reject it irrespective of whether it is in connection with a civil or criminal trial.”

64. Article 50(4): Evidence obtained in a manner that violates rights for example right to privacy would be excluded, on two fronts; if it would render the trial unfair, or would otherwise be detrimental to the administration of justice.

65. In the Court of Appeal case, and the Supreme Court decision of Njonjo Mue & another v Chairperson of Independent Electoral & Boundaries Commission & 3 others [2017] eKLR involved public documents which the court held that the documents therein could have been obtained if laid down procedures were followed in applying and obtaining the said documents and a balance had to be drawn between right to access to information with obligation to follow due process.

66. In this situation the document in question is an individual’s document though a passport is a “public” document so to speak, it is in the possession of the holder thereof. Secondly the urgency of the matter required quick action. Indeed, the Attorney General himself could not quickly access information from the Department of Immigration services. Thirdly, the information is relevant to the issue in question and necessary in the public interest.

67. Therefore, balancing between the need to access the document and the interest of fair adjudication of the matter and in the circumstances of this matter, the court finds that justice will be done if the secondary evidence is admitted.

68. And though the 1st respondent did not have the primary duty to present his passport before the court merely because the petitioner spoke of it, the petitioner in the circumstance made a prima facie case, the 1st respondent in his own interest and in the public interest ought to have made the passport available to lay to rest the alleged issue of his multiple nationality and to prove that indeed what he enjoys is dual nationality. This is a typical case where the burden of proof shifted to the 1st respondent.

69. Having admitted the copy of the 1st respondent’s American passport the information on the passport is as follows;Surname: GediGiven Name: Mohamed SurreyNationality: United States of AmericaDate of Birth- 21. October 1975Place of Birth: Somalia

70. The information in possession of the 2nd respondent from the 1st respondent’s Kenyan National Identification card gives the following detailsDate of Birth: 1st October 1974District of Birth: GarissaPlace of issue: PumwaniDistrict: SankuriLocation: SankuriSub-location: Sankuri

71. Citizenship & Representation of citizens are key chapters of the Constitution, they play a major role in the Governance structure not to be taken lightly on the phase of allegations of violation of the Constitution. The respondents ought albeit based on a copy of the passport placed before court indicating a case of Multiple nationality sit back and casually as if in defence of the 1st respondent, without any quick investigation through a multiagency approach to quickly put information before court to negate or affirm the issue after all the petitioner had placed prima facie evidence before court but they came to court with complacency; citing the court’s lack jurisdiction in an all-important subject touching on the interpretation and protection of the Constitution and indeed state security and ones allegiance. The evidentiary burden had shifted to them.

72. Article 3 mandates every person to up hold and defend the Constitution.The petitioner placed his evidence of the 1st respondent’s passport indicating that he is an American born in Somalia in contrast to the information on the Kenyan Identity Card which information he gave to 2nd respondent as deposed in paragraph 12 of the affidavit of Chrispine Owiye of the July 4, 2022, that he was born in Garissa County. Shouldn’t this information have been of concern to the 2nd respondent and other Agencies in upholding the requirements of the Constitution and other statutes?

73. The petitioner discharged his legal burden and at that point the evidentiary burden shifted to the 1st respondent to explain whether he was born in Somalia or Kenya and why the conflicting information in the two crucial nationality documents, secondly his connection to Somalia which in the American passport as opposed to his connection with Kenya which he claims is his country of birth as well.

74. The conflicting information in the American Passport and the Kenyan National Identity card raises also the question of credibility and integrity as espoused in chapter six as read with the Leadership and integrity Act.

75. Based on the above analysis, the petitioner in the absence of any evidence to the contrary by the respondents individually or collectively and the 2nd, 3rd and 4th interested parties, placed before court evidence that the 1st respondent is a holder of Somalia/American and Kenyan Nationalities and there is violation of the Constitution and or likely violation and /or threat to the Constitution and the law.As the Constitution of Kenya permits citizens of Kenya by birth as in articles 14 (1) as read with article 16 to have dual Citizenship and not Multiple Nationalities as is the case of the 1st petitioner.

76. And therefore the court holds and finds;a.The acts and /or Omissions of the 2nd & 3rd respondents, the 2nd, 3rd & 4th interested parties failed their mandate and their obligations under the Constitution and statute.b.The 1st respondent failed to present documents ascertaining that he is indeed a Kenyan Citizen as prescribed by the Constitution and Electoral laws to qualify to run for the seat of Member of Parliament for Fafi Constituency.c.That the 1st respondent is in violation of chapter 6 of the Constitution as read with the Leadership and Integrity Act.d.The petitioner was within his right as a Kenyan for himself and the Public Good to move this court.

77. Therefore, the court; -a.Declares that the acts and /or omissions of the 1st & 2nd respondents, are unconstitutional, null and void abi nitiob.Declares that the 1st respondent is not qualified to run for the position of Member of Parliament for Fafi Constituency.c.Orders the 2nd respondent to withdraw its clearance Certificate issue to the 1st respondent to run for the seat of Member for Parliament for Fafi Constituency.d.Orders the 2nd respondent not to print or to cause to be removed the name of the 1st respondent in the ballot papers of the elections scheduled for the August 9, 2022 for Fafi Constituency.e.Orders the 1st respondent to meet the costs of this Petition in any event.

DATED, DELIVERED AND SIGNED IN GARISSA THIS 21ST DAY OF JULY, 2022. ALI-ARONIJUDGE