[2015] KEHC 7111 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.85 OF 2015

BETWEEN

NTUSERO NAIMAUA TIYIE….….…………………......…………………………..PETITIONER

AND

JUBILEE ALLIANCE PARTY…….…..………......……...…………………..1ST RESPONDENT

PATRICK TUTUI………………………………………....…………………..2ND RESPONDENT

THE REGISTRAR OF POLITICAL PARTIES………...............……………..3RD RESPONDENT

INDEPENDENT ELECTORAL ANDBOUNDARIES COMMISSION…..…..4TH RESPONDENT

RULING

Introduction

1. The Application dated 9th March 2015 is premised on unclear provisions of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013, Section B, 1BAand 3Aof theCivil Procedure Rulesas well asOrder 40 Rule 2(1)and (2)of theCivil procedure Rules. It is also premised on “all other enabling provision”. The specific prayers made are;

“(1) That, this matter be certified urgent, its service be dispensed with and orders herein issued in the first instance.

(2) That an order be and is hereby issued for a conservatory order against the 1st, 3rd, and 4th Respondents from accepting the nomination of or participation of the 2nd Respondent in the scheduled by-election for Kajiado Central Constituency pending the hearing and the determination of this Petition or Further Orders of this Honourable Court.

(3) That an order be and is hereby issued for a temporary injunction restraining the 3rd Respondent from issuing to the 1st Respondent a provisional or Certificate of full Registration or any other certificate or document that shall enable the 1st Respondent to act as a political party until the hearing and determination of the Petition or Further Orders of this Honourable Court.

(4) This Honourable Court be pleased to make such orders as it deems just and fit in the circumstances.”

2. The facts relied upon are set out in the grounds on the face of the Application as well as the Affidavit in support of the Petition sworn on 9th March 2015 by Ntusero Naimaua Tiyie, the Petitioner/Applicant.

3. The Application is opposed by all the Respondents on grounds to be seen shortly.

Case for the Petitioner

4. In his Supporting Affidavit aforesaid, the Petitioner’s substantive complaint is that the 1st Respondent, Jubilee Alliance Party (JAP), is not a registered political party in Kenya and therefore the nomination of the 2nd Respondent as the JAP candidate in the by-election for the Kajiado Central Constituency seat is unlawful and in breach of the Petitioner’s constitutional rights as a citizen of Kenya and a voter in the said Constituency.

5. In that regard, he deponed that the 1st and 3rd Respondents in purporting to change the name, symbol and address of the Conservative Party to the Jubilee Alliance Party, acted in breach of the law allegedly for the reasons that;

(i) Section 20(1)(2) of the Political Parties Act required that the Conservative Party should have published its notice of intention to change its name, office bearers, physical address and symbol but it never did so.

(ii) The notice of change of name, party symbol and physical address published by one, Ms. Veronica Maina, on 28th January 2015 offends the provisions of Sections 6(1)and7(1) of the Political Parties Actas she was neither a member of the Conservative Party nor its Secretary-General at all material times. That she was on the contrary, a member of JAP and had no mandate to act on behalf of the Conservative Party in any matter including in the change of its name.

(iii) The nomination exercise carried out on 24th January 2015 by JAP for its nominee for the Kajiado Central Constituency by-election, meant that JAP was already operating as a political party even before the thirty days’ notice required by law for change of name had expired.

(iv) The letter dated 12th February 2015 from the 1st Respondent to the 3rd Respondent stating that it had received no objections to the proposed change of name, symbol and physical address of the Conservative Party was improper as it was signed by Veronica Maina aforesaid who was incompetent to do so and in any event, it had no meaning within Section 20 of the Political Parties Act as it did not originate from the Conservative Party itself.

(v) No notice of a public hearing was given to enable the public participate in the proposed political party changes.

(vi) There is no provision for a certificate of change of name such as the one issued to the 1st Respondent by the 3rdRespondent.

(vii) The 1st and 2nd Respondents have therefore no locus standi to participate in the Kajiado Central Constituency by-election.

6. In addition, Counsel for the Petitioner, Mr. Ndubi and Mr. Kwame submitted as follows;

7. That contrary to the assertions by the Respondents, the dispute placed before the Court is not one between an individual and a political party but one premised on breaches of the Constitution. That in that regard, Article 258 thereof grants the Petitioner locus standito institute the Petition.

8. In addition, that looking at Section 20of thePolitical Parties Act, against the conduct of the 1st and 3rd Respondents as regards the change of name, symbol and office for the Conservative Party, then Articles 38and 88 of the Constitution were blatantly violated and the Petitioner is under threat of being represented in the National Assembly by a person who is not fit and proper to do so.

9. Further, and in very elaborate submissions, Counsel submitted that strangers including Veronica Maina and others took over the Conservative Party without adhering to the law by undertaking the following actions;

(a) The change of name of the Conservative Party was effected before the thirty days’ notice envisaged by Section 20(3)of the Political Parties Act had lapsed. That a certificate change of name was also irregularly issued on 14th January 2015.

(b) The publication of a notice of change of name in “The Standard”newspaper of 28th January 2015 was done by Veronica Maina, a non-official of the Conservative Party. That any new officials of the said party ought to have been elected under that party’s constitution and this was not done.

(c) Ultimately therefore, the 2nd Respondent was nominated by a political party that had no capacity in law to do so.

(d) In any event, that contrary to the expectations of Section 20(2)of thePolitical Parties Act, the public was not involved in the decision to change the political party’s name.

10. In conclusion, they argued that the conservatory orders sought must be granted on account of the above said allegedly unlawful actions and to avoid unnecessary expenditure of public funds on a futile by-election. Conversely, that failure to grant the orders would mean approval of the unlawful conduct of the Respondents.

Case for the 1st and 2nd Respondents

11. The 1st and 2nd Respondents filed a Replying Affidavit sworn on 10th March 2015 by Ms Veronica Maina who stated that she is the Secretary-General of the 1st Respondent and that the Notice of Motion is without merit as the Petitioner is not a registered voter in Kajiado Central Constituency, has no locus to institute the same and in any event, he has not alleged nor illustrated any constitutional right that has been violated.

12. She further deponed that the Conservative Party has been in existence since its registration on 25th April 2012 and that once it resolved on 9th January 2014 to change its name to JAP, the actions of the Registrar of Political Parties in gazetting the notification of change were proper under Section 20(1)of thePolitical Parties Act and all subsequent actions of JAP were also lawful. In particular, that the 2nd Respondent was thereafter lawfully nominated as the JAP candidate for the Kajiado Central Constituency by-election and the Petition is therefore an afterthought, is tainted with malafides and is an abuse of Court process.

13. In any event, that the Application before me is either spent or incapable of enforcement and if allowed, would prejudice the 1st and 2nd Respondents greatly.

14. Mr. Ahmednassir, SC, in his submissions on behalf of the 1st and 2ndRespondents added that the Motion is frivolous and vexatious and was filed to annoy all other parties. That although the Petition and the Motion are said to be premised on the Constitution, not a single provision of the Constitution was cited in either of them.

15. Further, that both substantive prayers in the Motion cannot be granted as framed because they have been overtaken by events. In any event, that the Petitioner cannot lawfully challenge the activities of a political party in which he is not a member and to that extent, the right to participate in political activities under Article 38 of the Constitution can be limited in the case of the activities of a specific political party such as JAP.

16. In addition, that under Section 20 of the Political Parties Act, the changes in the name, symbol and address of a political party is automatic once a notice to that effect has been given and where no challenge to it has been made. In that regard, that once the thirty days for any objections to those actions had lapsed, JAP was lawfully entitled to pursue its agenda including the nominations of its candidates for political office which actions are therefore lawful.

17. Counsel contended that even if the facts as pleaded by the Petitioner are accepted as true, they are of no consequence since nomination is a foregone conclusion and to re-open it would be an exercise in futility.

18. Lastly, that applying the principles for grant of conservatory orders, no prima facie case has been established, no irreparable injury has been shown and on a balance of convenience, the same should favour the Respondents.

19. That for the above reasons, the Motion should be dismissed with costs to the Respondents.

Case for the 3rd Respondent

20. The 3rd Respondent in opposition to the Motion filed Grounds of Opposition to the effect that the same has been overtaken by events and Prayer 2, particularly, cannot be granted as in doing so, it would mean that the Petition had been allowed in its entirely.

21. Further, that there cannot be any debate as to the issuance of a provisional or Certificate of Full Registration to JAP because under Section 16 of the Political Parties Act, 2011, there is no new political party called JAP that has been registered since the Conservative Party, once registered, enjoys a corporate legal status and exists in a continuum.

22. In addition, that any complaint against the decision of the Registrar of Political Parties in the present circumstances, can only be determined by the Political Parties Disputes Tribunal and in any event, the said Registrarhas no role in nominations conducted by any political party.

23. Lastly, that applying the tests of public interest, proportionality and the harm, the Motion is rendered unmeritorious and should be struck out with costs.

24. Mr. Nyamodi, who appeared for the 3rd Respondent, in submissions added that;

25. Firstly, Prayer 2 of the Motion has nothing to do with the 3rd Respondent and on Prayer 3, the Conservative Party has not been dissolved and by dint of Section 16 of the Political Parties Act ,retains its corporate status in another name.

26. Regarding change of name of the Conservative Party, once notice in that regard was issued on 11th January 2015, JAP thereafter had the legal capacity to nominate a candidate for the by-election of 16th March 2015. In any event, by 16th February 2015 when the nomination certificate was issued to the 2nd Respondent, all the legal timelines had elapsed and the change of name had taken effect.

27. He further contended under Article 88(4)(e)of theConstitution, once the Returning Officer had issued a nomination certificate, his decision could only be challenged by filing a complaint with the IEBC Dispute Resolution Committeeand not with this Court. He placed reliance on the decisions in Diana Kethi Kilonzo& Anor vs Ahmed Isack & Anor [2014] eKLRandAfricog vs IEBC [2013] eKlr where that issue was addressed.

28. In conclusion, he submitted that balancing the rights of all voters in Kajiado Central Constituency against the Petitioner’s rights, the Court should reach the decision that the by-election should be conducted and the 2nd Respondent allowed to view for the by-election as is his right under Article 38(3)(c)of theConstitution.

29. For the above reasons, Mr. Nyamodi applied that the Petition be dismissed with costs.

Submissions for the 4th Respondent

30. The 4th Respondent in opposing the Motion filed two grounds of opposition to the effect that;

(i) This Court has no jurisdiction to determine the Motion.

(ii) The Motion is in any event, frivolous and vexatious.

31. Mr. Ogetto, learned Counsel for the 4th Respondent in his submissions on the twin issues above stated that the Petitioner is in the wrong forum and should have first approached the IEBC Dispute Resolution Committee to resolve the question whether the 2nd Respondent was validly nominated or not. He invoked Article 88(4)(c),of theConstitution Section 74of theElections Act as well as Rules 8and9of theIEBC Rules of Procedure on settlement of Disputes, (Legal Notice No.139 of 2013)in making that submission.

32. In addition, he relied on the decisions in Kores vs Nkedienye, H.C. [2013] e KLR, Semelang’o vs IEBC & Anor, [2014] eKLRandICPR vs A.G & Others, H.C. Petition No.552 of 2012all in which the High Court held that where a dispute resolution mandate has been conferred on the IEBC, a complaining party ought to exhaust that mandate and mechanism before invoking the Constitution and the jurisdiction of this Court.

33. For the above reasons, the 4th Respondent sought orders that the Petition ought to be struck off with costs.

Determination

34. As is always the case in political contests, including those that end up in Court, the pleadings and submissions before me ended up going past the narrow issues raised in the Motion dated 9th March 2015. For avoidance of doubt only two substantive prayers were sought in that Motion. They are;

(i) A conservatory order against the 1st, and 4th Respondents stopping/restraining them from “accepting the nomination of or participation of the 2nd Respondent” in the Kajiado Central Constituency by-election scheduled for 16th March 2014.

(ii) A temporary injunction restraining the 3rd Respondent from “issuing to the 1st Respondent a provisional or certificate of full Registration or any other certificate or document that shall enable the 1st Respondent to act as a political party.”

35. I will quickly dispose of issue No.(ii) above for the following reasons;

36. Firstly, it is now trite that an injunctive relief cannot be granted where there is in fact nothing to injunct. In other words, where the event or action which is sought to be stopped has already happened or taken place, it would be ridiculous to such issue orders as they would be in vain; See BP( K)Ltd vs Kisumu Market Services Station Ltd C.A 25 of 1992.

37. In that context, exhibit “VMN-08” annexed to the Replying Affidavit of Veronica Maina, is a Certificate of Change of Name dated 14th January 2015 wherein the 3rd Respondent certified that the Conservative Party “is now called Jubilee Alliance party (JAP).” The 3rd Respondent has also submitted that no other certificate is to be issued to JAP and that the issuance of a “Provisional or Certificate of Full Registration” is not an action to be undertaken with respect to JAP.

38. In that regard, it is admitted that the 3rd Respondent is the lawful organ under Sections 4,5, 6and 7of thePolitical Parties Act to register political parties and a certificate is a mere expression of that fact. I have not seen any provision of that Act, despite spirited submissions on the subject by Counsel for the Petitioner, which obligates the 3rd Respondent, upon change of name of a political party to issue the political party, with “a provisional certificate or certificate of full registration.” All evidence before me points to the fact that what happened was that the Conservative Party changed its name to the JAP and also changed its symbol and physical address under Section 20of thatActand was subsequently issued with a certificate of change of name in that regard. I see no reason for the apprehension that any other certificate may be issued as contended by the Petitioner.

39. In the event, there is clearly nothing to injunct since the 3rdRespondent has clearly stated that it neither intends to issue the two certificates cited nor is there provision for their issuance in the circumstances. I also note in passing that part of Prayer 3 related to the issuance of “any other certificate or document”to enable JAP act as a political party and it is now obvious in that regard that the said statement is superfluos in the context of the evidence before me. Prima facie, I see no basis for that statement either in fact or in law.

40. Court orders cannot be issued in a vacuum or in vain and I see no reason to say anything more about prayer 3 of the Motion.

41. Turning to prayer 2 thereof, parties spent a lot of time arguing on whether the Petition and Motion before me are predicated on violation of constitutional rights or a mere challenge to the nomination of the 2nd Respondent as the JAP candidate for the Kajiado Central Constituency by-election. While those issues are, as is the one on jurisdiction, extremely fundamental to a fair determination of the Motion, the prayer speaks for itself; it is the “nomination of” and “participation of” the 2nd Respondent in the by-election that is sought to be stopped. I will say something about the issues of jurisdiction, nominations and constitutional questions later, but in a different context.

42. Again, with respect to the Petitioner, the words, “nominations” and “participation” do not require a reference to “The Concise Thesaurus”as to their meaning. As correctly submitted by Mr. Nyamodi, “nomination” in the context of an election can only have the meaning ascribed to it by Section 2of theElections Actwhich is “the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act.”

43. All the evidence before me points to the fact that in accordance with Section 31of theElections Act, JAP notified the IEBC that it had nominated the 2nd Respondent as its candidate for the Kajiado Central Constituency by-election and IEBC thereafter issued the 2nd Respondent with a certificate of nomination under Rule51(2)of theElection Rules. That certificate was exhibited as “VMN-09” in the Replying Affidavit of Veronica Maina. Pausing there for a moment, what is the role of the 3rdRespondent in the nomination process and why should she be stopped from “accepting a nomination” in which she has no lawful role in, either prior to or after the nomination? I submit none.

44. In addition, the 1st Respondent is the nominating political party and has nothing to “accept” too. As for the 4th Respondent, it accepted the nomination of the 2nd Respondent, and issued him with a nomination certificate. That fact cannot be contested, so what is there to injunct? I submit that there is nothing to injunct and that part of prayer 2 is also made in vain and I refuse to issue any orders in vain.

45. Regarding the “participation of the 2nd Respondent” in the by-election, I am satisfied that from the submissions before me, this was really the crux of the Motion.

46. That being the case, it is sought that the 2nd Respondent should not participate in the by-election because the action of changing the Conservative Party to JAP was not properly undertaken in accordance with the Constitution and the Political Parties Act. That therefore the nomination of the 2ndRespondent was equally unlawful and so he should be stopped from participating in the by-election.

47. On this aspect of the Motion, it has been argued, principally by the 4th Respondent, that such a matter ought to have been placed before the IEBC Disputes Resolution Committee for determination and that this Court has no jurisdiction in the matter.

48. Jurisdiction, once raised, must always be determined quickly so that if the Court finds that it has no jurisdiction, it downs its tools to quote Nyarangi JA in the Owners of Motor Vessel Lillian “S” Case.

49. Contrary to submissions by the Respondents however, a quick glance at the Petition dated 9th March 2015 would show that it is not a Petition about nominations per se. For avoidance of doubt, the Prayers in the Petition read as follows;

“(a) A declaration that the actions and omissions of the 3rd and 4th Respondents were and are in continued violation of the constitutional right of the people of Kajiado Constituency to a free, fair and democratic election and to equal protection of the law.

(b) A declaration that the 1st Respondent acted unlawfully and fraudulently in procuring its purported registration as a political party.

(c) A declaration that the 1st Respondent is not a registered political party as envisaged under the Constitution, 2010 and the Political Parties Act, 2011 and is therefore incompetent to present a candidate for the by-election of Kajiado Central Constituency.

(d) An order directing the 3rd Respondent to deregister the 1st Respondent in accordance with the provision of Section 21(1)(d)(e) and (f) and (f) of the Political Parties Act, 2011 and Article 91 (1)(g) and (h), and 2(d) of the Constitution 2010.

(e)An order that this Petition having been brought in public interest by an indigent Petitioner, costs be awarded to him but in any event be borne by the Respondents.”(Emphasis added)

50. While the Prayers could have been worded more elegantly, without saying more, they will require a determination of more than the issue whether the 2nd Respondent was properly nominated to vie for the Kajiado Central by-elections. I have also shown that the opposition to his “participation” in the by-election is predicated on matters that pre-date his nomination and the nomination process. The manner in which JAP changed its name is also, for example, not a nomination question.

51. The above are certainly not matters for the IEBC Dispute Resolution Committee and little was said of the Political Parties Disputes Tribunal to enable me determine whether it is the right forum to ventilate the said issues.

52. If that be so and since this Court has jurisdiction under Article 165(3) (d) of the Constitution to determine the constitutionality and lawfulness of the issues raised in the Petition, has the Petitioner met the threshold for grant of conservatory orders?

53. In CREAW & Others vs The A.G [2011] 1 E.A. 84, it was held that;

“a party seeking a conservatory order only requires demonstrating that he has a prima facie case with a likelihood of success and that unless the Court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution”

54. I would adopt the same approach and before saying more, I must warn myself that at the interlocutory stage, a Court ought not to make any determinate finding on contested questions of fact or law. In following that edict, I refuse to be drawn into determining conclusively whether JAP is or is not an existing political party but prima facie, it is so because it has the de jure status of such a party. Further, the contested facts about the manner in which the Conservative Party changed its name cannot be determined by this Ruling. Those facts can only be interrogated when the Petition is heard on its merits.

55. Having said so therefore whether or not the Petitioner has made out a prima facie case is neither here nor there but I am satisfied that there are triable issues under the Constitution and the Political Parties Act for further interrogation by this Court.

56. More fundamentally however is the second consideration of prejudice to be suffered even if it were true that the Petitioner’s rights are threatened with violation or have in fact been violated. In that regard, it must be understood that the Petitioner is not a member of JAP. He has also not exhibited his voter’s card in his pleadings and when I asked him for it, he stated that he had left it at home. He came to Court 7 days before the by-elections when nominations had been closed on 16th February 2015. He failed to explain why he chose the last week of an obviously heavily contested by-election to approach the seat of justice. He also failed to show in his Affidavit, and his Counsel both labored very heavily to pin-point to me, what specific violation of rights he stands to suffer if the conservatory orders are not issued.

57. Compare that situation with the following; the other voters in Kajiado Central Constituency have not come to support him in his Petition although it is in the public domain. The IEBC has also obviously put in place mechanisms for a smooth by-election at great public cost and political parties are on the campaign trail. Who will suffer more prejudice in the circumstances and I should add that the 2nd Respondent has obviously spent time and resource in his campaigns?

58. In that regard, in Veronica Waithira (Trustee of Inter Christian Churches and 3 Others) vs Kenya National Highways Authority [2014] e KLR, the learned Judge stated that;

“The wider public good and interest would militate against the Court granting an injunction in favour of the Plaintiffs who only constitute a small segment of the public …”

59. Further, in Kenya Pipeline Co. Ltd vs Githunguri [2011] eKLR, the Court of Appeal invoked the principle of proportionality and public interest in determining whether to grant an injunction.

60. Both cases above involved land but the principles enunciated in them are applicable squarely to the present Motion.

61. In applying them therefore, the Petitioner still has the option of filing an election Petition should the 2nd Respondent get elected but think of the immense prejudice if the 2nd Respondent is stopped from participating in the by-election. I have shown that compared to the Petitioner, the 2nd Respondent and the voters in Kajiado Central Constituency stand to suffer more prejudice if the by-election were to be stopped or specifically if the 2nd Respondent is stopped from participating in it. He may also fail to clinch the seat and so what purpose will my orders have served?

62. Both on account of the need to protect the rights of others (including the 2nd Respondent’s) under Article 38as read withArticle 24 of the Constitution, and on the need to balance private interest against public interest, the balance of convenience must favour the Respondents.

In the event, I decline to grant that part of prayer 3 of the Motion which seeks orders that the 2nd Respondent should be stopped from participating in the Kajiado Central Constituency by-election.

63. On costs, the dispute is only just beginning and I have declined to strike out the Petition. Cost should best await the outcome of the Petition.

Disposal

64. In conclusion, the Application dated 9th March 2015 is dismissed. Costs shall await the outcome of the Petition.

65. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 13TH DAY OF MARCH, 2015

ISAAC LENAOLA

JUDGE

In the presence of:

Kariuki – Court clerk

Mr. Ndubi for Petitioner

Mr. Cohen holding brief for Mr. Ahmednassir for 1st and 2nd Respondent

Miss Nyonje holding brief for Mr. Ogeto for 4th Respondent

Mr. Saluni holding brief for Mr. Nyamodi for 2nd Respondent

Order

Ruling duly read.

Mr. Ndubi

I apply for certified copies of the Ruling and proceedings for an appeal.

Order

Proceeding to be typed and to be supplied to Parties on the usual way.

ISAAC LENAOLA

JUDGE

13/3/2015