[2018] KECA 292 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: GITHINJI, J. MOHAMED & OTIENO-ODEK, JJA)

CIVIL APPEAL NO. 37 OF 2018

BETWEEN

ORANGE DEMOCRATIC MOVEMENT..................................APPELLANT

AND

YUSUF ALI MOHAMED.....................................................1st RESPONDENT

JOHN OSING AYAPAN......................................................2nd RESPONDENT

INDEPENDENT ELECTORAL and BOUNDARIES

COMMISSION (IEBC).......................................................3rd RESPONDENT

LILLIAN JEBIWOT KIMOSOP.......................................4th RESPONDENT

ESTHER APETET...............................................................5th RESPONDENT

CLERK TO THE TURKANA COUNTY ASSEMBLY......6th RESPODENT

(Being an appeal from the Ruling and Orders of the High Court at

Lodwar, (Riechi, J.) dated 4th April 2018

in

High Court at Lodwar, Constitutional Petition Nos. 2 and 3 of 2017)

*******************

JUDGMENT OF THE COURT

1. The uncontested fact in this appeal is that the appellant, the Orange Democratic Movement (ODM) is a political party which fielded candidates for nomination and elections in the 2017 general elections. As a political party, ODM was expected and required to submit a Party List to the IEBC containing names of eligible persons who were to be nominated as Members of the Lodwar County Assembly.

2. In compliance with Section 35 of the Elections Act, ODM duly submitted a Party List to the IEBC. By Gazette Notice dated 28th August 2017, Vol. CXLX- No. 124, the IEBC gazetted Lillian Jebiwot Kimosop, (the 4the respondent) and Esther Apetet (the 5th respondent) as the duly nominated Members of Lodwar County Assembly under the Party List of the Orange Democratic Movement.

3. The 1st appellant, Yusuf Ali Mohamed, in Petition No. 2 of 2017, contended that the nomination, gazettment and swearing in of the 4th respondent was null and void as it was prejudicial to him as a resident of Turkana County and a member of ODM; that the 4th respondent is not a registered voter in Turkana County; that the nomination of the 4th respondent violated Articles 90 and 177 of the Constitution; that his constitutional right of representation was prejudiced.

4. The 2nd appellant, John Osing Ayapan, in Petition No. 3 of 2017, contended that the nomination and gazettment of the 5th respondent as Member of the Lodwar Country Assembly is null and void; that the 5th respondent was the Assistant Chief of Nachukui sub-Location, Ng’isiger Location, Turkana North Sub-Country and therefore a public servant within the meaning of Article 260 of the Constitution; that the 5th respondent was listed as candidate No. 9 out of 13 in the Gender Top Up Party List in the special issue of Kenya Gazette of 28th August 2017; that the nomination and subsequent gazettment of the 5th respondent as Member of Turkana County Assembly is a violation of Article 193 (2) (a) and (c) of the Constitution; that the nomination and gazettment of both the 4th and 5th respondents was in violation of fair administrative action in view of the fact that there was no justification as to why the two were picked yet their names were far below in their respective categories of Gender and Marginalized persons respectively; that the nomination of the 4th and 5th respondents was a discrimination against other applicants in the respective lists without any legal basis.

5. Aggrieved by the nomination, gazettment and swearing in of the 4th and 5th respondents as Members of the Lodwar County Assembly, the 1st and 2nd appellants filed two constitutional petitions before the High Court sitting at Lodwar.

6. The 1st appellant, Yusuf Ali Mohamed, in constitutional petition No. 2 of 2017 dated 20th September 2017 sought inter alia the following prayers:

(i) That the nomination and gazettment of the 4th respondent as a Member of the County Assembly of Turkana be nullified.

(ii) A declaration that the process that led to the nomination, gazettment and swearing in of the 4th respondent was irregular and illegal.

(iii) That ODM be ordered to nominate a representative as required by the law.

7. The 2nd appellant, John Osing Ayapan, in constitutional petition No. 3 of 2017 dated 4th September 2017 sought, inter alia, the following prayers:

(i) A declaration that the nomination and gazettment of the 4th and 5th respondents as members of the Lodwar County Assembly is in violation of Article 193 (2) (a) and (3) of the Constitution and is null and void.

(ii) A declaration that the nomination and gazettment of the 4th and 5th respondents was discriminatory against other applicants in the Party List and is therefore unconstitutional.

(iii) An order requiring the 3rd respondent, the IEBC, to cause to be de-gazetted the nomination of the 4th and 5th respondents.

(iv) An order requiring the appellant, ODM, to nominate eligible and qualified persons for gazettment by the IEBC as members of the Turkana County Assembly.

8. Upon service of the constitutional petitions, the 3rd, 4th, and 6th respondents filed Notices of Preliminary Objection. The gist of their Objection was that the High Court had no jurisdiction to hear and determine constitutional petition Nos. 2 and 3 of 2017 as filed.

9. More specifically, the IEBC, filed a Notice of Preliminary Objection to wit that the High Court lacked jurisdiction to hear and determine the constitutional petitions as the said Petitions offended the provisions of Section 75 (1A) of the Elections Act.

10. In verbose, the Notice of Preliminary Objection by the 4th respondent stated:

1. That the High Court lacks jurisdiction to hear and determine the petition in view of the provisions of Article 88 (4) (e) of the Constitution 2010, Section 74 (1) of the Elections Actand Section 39 of the Political Parties Act.

2. That the constitutional petition filed before the Lodwar High Court was premature, bad in law and incompetent.

3. That the Petitioner did not comply with the provisions of Section 78 of the Elections Act and hence the constitutional petition was a non-starter.

11. The Notice of Preliminary Objection by the 6th respondent was to the effect that the High Court lacked the requisite jurisdiction in view of the provisions of Section75 (1A) of the Elections Act.

12. Upon hearing the parties, the High Court (Riechi J.) delivered a Ruling dated 4th April 2018 dismissing all the Preliminary Objections. In the Ruling, the High Court held that it had jurisdiction to hear and determine the issues raised in constitutional petitions Nos. 2 and 3 of 2017. In his Ruling, the learned judge expressed as follows:

In my view, when an applicant is pleading breach of his constitutional rights under the bill of rights or this Constitution, whether the rights purported to be breached or infringed are political, societal, economic or otherwise, the High Court will have jurisdiction by dint of Article 165 of the Constitution to hear and determine the issue. The jurisdiction vested in the High Court under Article 165 is unlimited and can only be restrained by the Constitution. Where upon hearing the petition the Court finds that the petition though clothed as a constitutional petition is actually an election petition, the Court to issue appropriate orders under the law. This preliminary objection is in my view premised on disputed facts which will be clarified during the hearing of the petition. Consequently, I find this preliminary objection without merit and is hereby dismissed (sic).

13. Aggrieved by the Ruling, the appellant has filed the instant appeal citing the following grounds in its Memorandum of Appeal:

(i) The learned judge erred in holding that the High Court had jurisdiction to entertain a dispute over the validity of nomination of the 4th and 5th respondents after they had been gazetted and sworn in as Members of Lodwar County Assembly.

(ii) The judge erred in holding that the question of jurisdiction could only be raised once facts were ascertained or agreed upon by the parties yet the nature of the dispute was ascertainable on the face of the Petitioner’s pleadings.

(iii) The judge misdirected himself in holding that he needed to interrogate the facts of the dispute to determine whether the court had jurisdiction when it was clear on the face of the pleadings that the 1st and 2nd respondents were contesting the validity of the election of the 4th and 5th respondents under the appellant’s Party List.

(iv) The judge failed to appreciate that where nullification of an election is sought based on violation of the Constitution and or Human Rights, the appropriate forum to address the alleged violations is an Election Court.

(v) The judge misapplied the law in holding that the High Court had jurisdiction to entertain a claim when the main prayer sought is for nullification of nomination of the 4th and 5th respondents as Members of Lodwar County Assembly.

14. At the hearing of this appeal, learned counsel Mr. Ibrahim Oduor appeared for the appellant. Learned counsel Mr. Kemei for the 1st respondent; Mr. Wafula for the 2nd respondent; Mr. Kibet for 3rd the respondent; Mr. Barongo for the 5th respondent and holding brief for Mr. Chebii for the 4th respondent and the said learned counsel Mr. Ibrahim Oduor holding brief for Mr. Nyachoti for the 6th respondent.

15. The appellant as well as the 3rd, 4th, 5th and 6th respondents made submissions in support of the appeal. The 1st and 2nd respondents opposed the appeal.

16. The appellant filed written submissions in the appeal. Learned Counsel Mr. Oduor while relying on his written submissions (and holding brief for counsel for the 6th respondent) urged us to find that the High Court erred in holding that it had jurisdiction to hear and determine vide a constitutional petition a claim relating to nomination and election to a County Assembly. Counsel submitted that the dispute in this appeal that culminated into the constitutional petition filed before the High Court arose from publication in the Kenya Gazette the nomination of the 4th and 5th respondent’s as Members of the Lodwar County Assembly; that the Gazette was published pursuant to powers conferred to the IEBC inter alia under Articles 88 (5), 90, and 177 of the ConstitutionandSections 34, 35, 36 and 37 of the Elections Act. Counsel submitted that pursuant to Article 90 (2) (a) of the Constitution, the 4th and 5th respondents effectively stood elected as Members of the Lodwar County Assembly upon publication of their names in Gazette Notice No. 8380 Vol. CIX – No. 24 of 28th August 2017. That consequent to the aforestated Gazette publication, any challenge to their nomination can only be done by way of an election petition brought under Section 75 (1A) of the Elections Act.

17. In support of the appellant’s submissions, counsel cited dicta from the Supreme Court case of Moses Mwicigi & 14 Others – v- Independent Electoral & Boundaries Commission & 5 others [2016] eKLR where at paragraph 115 the Court stated:

“…the Elections Act confers jurisdiction upon Magistrate’s Court to determine the validity of the election of a member of a County Assembly; Section 75 (1A) of the Act provides that: A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.”

18. Counsel also cited dictum from this Court in Jaldesa Tuke Dabello – v- Independent Electoral and Boundaries Commission & another (2015) eKLR Civil Appeal No. 37 of 2014where it was held:

We are cognizant of the principle that upon gazettment of members of the County Assembly, they are deemed to be elected members of the County Assembly and thus Section 75 (1A) of the Elections Act expressly indicated that the jurisdiction to consider, hear and determine the question as to the validity of election of Members of County Assembly is vested with the Resident Magistrate’s Court designated by the Chief Justice.

19. Counsel for the 3rd, 4th and 5th respondents supported the appeal. Mr. Kibet for the 3rd respondent rehashed the prayers sought in constitutional petition Nos. 2 and 3 of 2017 filed at the High Court in Lodwar. Citing the Supreme Court decision in Moses Mwicigi & 14 Others – v- Independent Electoral & Boundaries Commission & 5 others [2016] eKLR,at paragraph 117 thereof, counsel submitted that publication of the nominated or elected candidates in the Gazette marks the end of the mandate of the IEBC regarding the nomination of party representatives and shifts any consequential dispute to the Election Courts, that in the instant matter, the publication of the names of the 4th and 5th respondents in the Gazette as the duly nominated members of the Lodwar County Assembly marked the end of the nomination process and any dispute relating thereto can only be heard and determined by way of an election petition; that in the instant matter, the 1st and 2nd respondents having filed a constitutional petition before the High Court, the said High Court lacked jurisdiction to hear and determine a nomination or election related dispute, and that pursuant to Section 75 (1A) of the Election Act, the court with jurisdiction to hear nomination or election disputes relating to membership to any county Assembly is the Resident Magistrates Court presided over by a duly gazetted Magistrate designated by the Hon. Chief Justice.

20. Counsel cited dictum from Isaiah Gichu Ndirangu & 2 Others – v- Independent Electoral & Boundaries Commission & 4 Others (2016) eKLR where Lenaola J. (as he then was) stated:

I do not think that it is right for a litigant to ignore with abandon a dispute resolution mechanism provided for in a statute and which would easily address his concerns and rush to this court under the guise of a constitutional petition for alleged breach of constitutional rights under the bill of rights…..

21. Learned counsel, Mr. Barongo, for the 4th and 5th respondents associated himself with submissions made by counsel for the appellant and the 3rd respondent. He emphasized that Article 177 of the Constitution is to the effect that Members of a County Assembly include both elected and nominated members; that the 4th and 5th respondents being nominated members are in law deemed to be elected members. He submitted that nomination is a product of elections and once a political party secures a right to nominate members to the County Assembly, upon gazettment, the nominated members are deemed to be elected members pursuant to the provisions of Article 177 of the Constitution. In urging us to allow the appeal, counsel submitted that the jurisdiction to hear and determine election disputes in relation to Membership of a County Assembly vests upon the Magistrates Court.

22. Strenously opposing the appeal, learned Counsel Mr. Kemei for the 1st respondent urged us to appreciate that the two constitutional petitions filed before the High Court were not election petitions but constitutional petitions seeking to vindicate and enforce minority rights and the rights of marginalized groups as enshrined in the Bill of Rights. That the minority and marginalized group rights in Turkana County were being breached and violated by the appellant and the 3rd respondent.

23. Counsel submitted that the learned judge did not err in finding that the High Court had jurisdiction to hear and determine the constitutional petitions filed before the court. He urged us to dismiss the instant appeal with costs. While relying on his written submissions, counsel urged us to note that the constitutional petitions before the High Court centered on infringement of minority rights and discrimination in Turkana County. That the 1st respondent is a member of the minority Somali community in Turkana County; that the core grievance in the constitutional petitions is that both the 4th and 5th respondents do not come from any of the minority communities in Turkana County; that pursuant to Articles 56 and 91 (1e) of the Constitution, the rights of minorities must be respected and enforced; that Article 56 of the Constitution recognizes the rights of minorities and marginalized groups and the need for affirmative action programs to ensure that minorities and marginalized groups participate and are represented in governance and other spheres of life.

24. In his submissions, counsel for the 1st respondent identified four issues in contestation in this appeal to wit:

(a) Whether the Preliminary Objections met the requisite threshold.

(b) Whether the Petition filed at the Lodwar High Court met the requisite threshold for a constitutional petition.

(c) Whether there is any other forum vested with jurisdiction to determine applications for redress of violation of fundamental rights and breach of the Constitution and

(d) Whether there is a specific constitutional and statutory bar to the High Court to entertain the 1st respondent’s Petition.

25. Counsel made extensive submissions on each of the contested issues he identified above. He submitted that the preliminary objection raised before the trial court was not on a point of law but premised on contested facts; that a preliminary objection must be founded on a point of law. Citing dictum from the High Court case of Oraro –v – Mbaja (2005) 1 KLR 141, it was submitted that the preliminary objections filed before the trial court were based on contested facts. That the contested facts were whether indeed the rights of the minority and marginalized groups was breached and violated in Turkana County in the process leading to nomination of the 4th and 5th respondents as Members of Lodwar County Assembly. Counsel urged us to note that in law, any assertion which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not a matter of legal principle; that where a court needs to investigate facts, a matter cannot be raised as a preliminary objection; that anything that purports to be a preliminary objection must not deal with disputed facts. In this context, counsel cited dictum in Mukisa Biscuit Manufacturing Co. Ltd. – v- Wes End Distributors Limited (1969) EA 696 where it was held that a preliminary objection consists of a pure point of law which has been pleaded or which arises by clear implication out of pleadings.

26. In further opposition to the instant appeal, counsel cited the case of Anarita Karimi Njeru – v- The Republic (1976-1980) KLR 1272 where it was expressed that a person seeking redress from the High Court on a matter which involves the Constitution must set out with reasonable degree of precision that of which he complains. It was submitted that the 1st respondent in his petition before the High Court had set out with precision his complaint and grievance namely that there were constitutional breaches visited upon him, his Somali Community and the entire minority and marginalized communities within Turkana County. That the Petition before the High Court seek determination on whether the constitutional provisions on protection and promotion of the rights of minorities and marginalized groups have been breached and violated. Counsel submitted that an election petition is an option in litigating some aspects of the petition before the High Court but it is not the only option; that there are various aspects that an election court could be handicapped in determining the petition. On this basis, it was submitted that the 1st and 2nd respondents were right in law in filing constitutional petition before the High Court to ventilate their grievance. In this context, counsel opined that the trial court did not err in finding that it had jurisdiction to hear and determine the petitions.

27. The 1st respondent further urged us to note that remedies in an election petition would only be effective in personam whereas remedies in a constitutional petition would be effective in rem. It was submitted that where an alternative dispute resolution mechanism is provided, it does not in any way oust the viability of a constitutional petition; that an election petition would only be concerned with breaches of either constitutional or statutory provisions purely relating to the respective elections; that breaches that may not ordinarily be limited to elections cannot be litigated through an election petition because of insufficiency of remedies. In the instant case, the 1st respondent submitted that an election court is not a proper forum to litigate violation of minority rights and breach of rights of marginalized communities.

28. A priory, we state that the 1st respondent’s submission that remedies in an election petition are in personam whereas remedies in a constitutional petition are in remis a misconception of law. The electoral and nomination process and the declared results thereof are in rem.A candidate may be nominated or elected as a person but the declared election or nomination results as well as any election petition judgment or relief is a judgment or relief in rem. Such outcome or relief binds the whole world and alters the legal status of the candidate in so far as it relates to the election outcome and petition.

29. On the question whether there is any other forum vested with jurisdiction to determine applications for and redress of violation of fundamental rights and breaches of the Constitution, counsel for the 1st respondent submitted that yes there are other fora but such other fora do not oust the jurisdiction of the High Court. Citing Article 23 of the Constitution, counsel submitted that the High Court is the proper forum to litigate breaches of the Constitution and violation of human rights, that whereas Section 8 of the Magistrates Courts Act, No 26 of 2015 vests jurisdiction upon the Magistrates court to deal with claims relating to human rights, the jurisdiction of the Court is limited to violations of Articles 25 (a) and (b) of the Constitution. Section 8 provides:

(1) Subject to Article 165 (3) (b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate’s court shall have jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(2) The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25 (a) and (b) of the Constitution.

(3) Nothing in this Act may be construed as conferring jurisdiction on a magistrate’s court to hear and determine claims for compensations for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights.

30. Based on the provisions of Section 8 of the Magistrates Court Act, counsel submitted that the Magistrates court has no jurisdiction to hear and determine violation of minority rights and protection of the marginalized groups. That the claim and issues raised in the constitutional petitions filed before the High Court are outside the jurisdiction of the Magistrates court. In addition, counsel submitted that neither the IEBC nor the Political Parties Dispute Tribunal (PPTD) have jurisdiction to deal with violation of minority rights and protection of marginalized groups. Consequently, counsel urged us to find that there is no other effective forum apart from the High Court that has requisite jurisdiction to determine the Petitions now pending before the High Court in Lodwar.

31. In concluding his submission, counsel for the 1st respondent submitted that there is neither a constitutional nor statutory provision barring the High Court from hearing and determining any matter; that the original jurisdiction that has been granted to the High Court under Article 165 of the Constitution cannot be taken away by implication.

32. Learned counsel, Mr. Wafula, for the 2nd respondent in opposing the appeal associated himself with the submissions made by counsel for the 1st respondent. He relied on his written submissions. He submitted that it was not true that the 2nd respondent sought a prayer for nullification of the Gazette Notice that indicated the 4th and 5th respondents as having been duly nominated as Members of the Lodwar County Assembly. Counsel urged us to find that the Preliminary Objection was rightly dismissed and that the 1st and 2nd respondents are entitled to be given an audience before the High Court to air their grievances on the claims raised in the Petitions before the Court.

33. In reply to the 1st and 2nd respondents’ submissions, all counsel supporting the appeal urged us to note that the key issue in the appeal is whether the High Court has jurisdiction to hear and determine an election related dispute arising from nomination, election and Membership to a County Assembly. All Counsel urged us to critically examine and analyze the prayers in the constitutional petitions filed before the High Court; that a cursory glance on the face of the petitions reveal that at the core of the petitions is prayer for nullification of gazettment of the 4th and 5th respondents as Members of the Lodwar County Assembly; that these prayers reveal that the substance of the constitutional petitions filed before the High Court is an election petition guised, framed and couched as a constitutional petition.

34. On our part, we discern that the fundamental issue in this appeal is the jurisdiction of the High Court to hear and determine by way of a constitutional petition a nomination or election dispute relating to Membership of a County Assembly. Based on the facts of this case, the issue can be posited in form of a question to wit: Does the High Court have original jurisdiction by way of a constitutional petition to hear and determine election and nomination disputes in relation to Membership to County Assembly when the claim and contestation involves alleged violation of minority rights or protection and enforcement of rights of marginalized groups? This is a jurisdictional question. In Owners of the Motor Vessel “Lilian S” –v- Caltex Oil (Kenya) Limited [1989] KLR 1, it was stated as follows:

“Jurisdiction is everything and without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

35. In this appeal, we have considered the grounds of appeal, submissions by counsel and the authorities cited. Sections 35 of the Elections Act, under the rubric “nomination of party list members” is relevant. Section 35 of the Act provides as follows:

“(1) A political party shall submit its party list to the Commission on the same day as the day designated for submission to the Commission by political parties of nominations of candidates for an election before the nomination of candidates under Article 97 (1) (a) and (b), 98 (1) (a) and 177 (1) (a) of the Constitution.”

The Act further provides under Section 36(1) that:

“.…

(e) Article 177 (1) (b) of the Constitutionshall include a list of the number of candidates reflecting the number of wards in the county.”

36. The question in this appeal is whether a constitutional petition before the High Court can be invoked to initiate an election related or party nomination dispute subsequent to gazettment of nominated candidates. This goes to the root of the jurisdictional competence of the High Court to hear and determine election or nomination disputes by way of judicial review or constitutional petition.

37. At the outset, we seek to address the following statement by the learned judge expressed as follows in his Ruling dated 4th April, 2018.

Where upon hearing the petitionthe Court finds that the petition though clothed as a constitutional petition is actually an election petition, the Court to issue appropriate orders under the law. This preliminary objection is in my view premised on disputed facts which will be clarified during the hearing of the petition. Consequently, I find this preliminary objection without merit and is hereby dismissed (Emphasis supplied).

38. The above statement by the judge is erroneous in law. It presupposes that a court determines if it has jurisdiction upon hearing the parties and after clarifying any disputed facts. Whenever there is a dispute on the jurisdictional competence of a court, the question of jurisdiction must be determined upfront. The question of jurisdiction cannot be determined at the end of full hearing of the merits of the case. It is a preliminary issue to be determined at the outset.

39. In this matter, it is not disputed that the IEBC gazetted Lillian Jebiwot Kimosop, (the 4the respondent) and Esther Apetet (the 5th respondent) as duly nominated Members of Lodwar County Assembly under the Party List of Orange Democratic Movement videGazette Notice dated 28th August 2017, Vol. CXLX- No. 124.

40. The undisputed fact of gazettment of the 4th and 5th respondents is pivotal to this appeal. Gazettment of duly nominated or elected members of a County Assembly has consequences in terms of determining the forum that has jurisdictional competence to hear and determine disputes ensuing from the nomination or election process.

41. In this appeal, the 1st and 2nd respondents have vehemently urged that the dispute before the High Court in the constitutional petitions are claims founded and grounded upon breach and violation of minority rights and protection of rights of marginalized groups as enshrined in the Bill of Rights. That such claims can only be urged by way of a constitutional petition.

42. On our part, we have considered the prayers sought by the 1st and 2nd respondents as enumerated in constitutional petition Nos. 2 and 3 of 2017 filed before the High Court at Lodwar. Of relevance is the specific prayer in Petition No. 3 of 2017 that seeks declaration that the nomination and gazettment of the 4th and 5th respondents as members of the Lodwar County Assembly be declared null and void. Pivotal is the prayer for an order to de-gazette the nomination of the 4th and 5th respondents as Members of the Lodwar County Assembly.

43. In our considered view, these prayers are germane to determining whether the Petition filed before the High Court is an election petition couched as a constitutional petition yet in fact and law the relief sought is a relief only available in an election petition. On this issue, we are persuaded by the observations made by Lenaola J. (as he then was) in Isaiah Gichu Ndirangu & 2 Others – v- Independent Electoral & Boundaries Commission & 4 Others (2016) eKLR that it is not right for a litigant to ignore with abandon a dispute resolution mechanism provided for in a statute and rush to the High Court under the guise of a constitutional petition for alleged breach of constitutional rights under the Bill of Rights. We are convinced and satisfied that the prayers sought by the 1st and 2nd respondents in the Petition filed before the High Court are prayers and relief that can only be granted by an election court. The High Court is not an election court with original jurisdiction to hear and determine or grant any relief relating to post-gazettment of Membership to a County Assembly.

44. We hasten to add that a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court. In the instant appeal, both the substance of the claim in the constitutional petitions and the reliefs sought are election related and election petition contestations. The substratum of the 1st and 2nd respondent’s claim in the constitutional petitions arise from election nomination process with the consequence that in law, their claims are founded, grounded and premised on an election process. Being founded and premised on an election process, it is the election dispute resolution mechanism that must be invoked in resolving any contestations.

45. The Supreme Court in Moses Mwicigi & 14 others[2016] eKLR(supra) extensively expressed itself in relation to the judicial review proceedings (or for that matter, constitutional petitions) as mechanisms for challenging nominations to membership to the National or County Assembly after gazettment by the IEBC. The Court expressed as follows:

“[105] It is clear from the foregoing provisions that the allocation of nomination- seats by the IEBC is atime bound process,that starts with the proportional determination of the number of seats due to each political party. On that basis, IEBC then‘designates’,or‘draws from’the allocated list the number of nominees required to join the County Assembly. To ‘designate’or‘draw from’entails the act of selectingfrom the list provided by the political party. It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC, as an integral part of theelection process.

[106] TheGazette Noticein this case, signifies the completion of the “election through nomination”, and finalizes the process of constituting the Assembly in question.On the other hand, an “election by registered voters”, as was held in theJoho Case,is in principle, completed by the issuance of Form 38, which terminates the returning officer’s mandate,and shifts any issue as to the validity of results from the IEBC to the Election Court.(Emphasis supplied)

[107] It is therefore clear that the publication of theGazette Noticemarks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts any consequential dispute to the Election Courts. TheGazette Noticealso serves to notify the public of those who have been “elected” to serve as nominated members of a County Assembly. (Emphasis supplied)

[115] The Elections Act confers jurisdiction upon Magistrates Courts to determine the validity of the election of a member of a County Assembly; Section 75 (1A) of the Act provides that:

“A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.”

[117] It is clear to us that the Constitution provides for two modes of ‘election’. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way ofnomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’.

[119] To allow an electoral dispute to be transmuted into a petition for the vindication of fundamental rights under Article 165 (3) of the Constitution, or through judicial review proceedings, in our respectful opinion, carries the risk of opening up a parallel electoral dispute-resolution regime. Such an event would serve not only to complicate, but ultimately, to defeat thesui generischaracter of electoral dispute-resolution mechanisms, and notwithstanding the vital role of electoral dispute-settlement in the progressive governance set-up of the current Constitution.”(Emphasis supplied)

46. The 1st and 2nd respondents in this appeal have urged us to consider whether there is a specific constitutional or statutory bar to the High Court to entertain a constitutional petition on settlement of electoral disputes in relation to Membership to a County Assembly. In his written submissions at paragraph 36, the 1st respondent states that Section 75 (1A) of the Elections Act deals with election petitions with respect to election of a member of a County Assembly; that this provision refers exclusively to elected members of the County Assembly and not nominated members; that Members of the County Assembly nominated to represent special interest groups do not undergo an election per se; that the petition before the High Court is not an election petition to bring it under the purview of electoral laws.

47. We have considered the above submission by the 1st respondent as captured in paragraph 36 of his written submissions. With due respect, this submission is a misconception of the law. Upon gazettment, both nominated candidates as well as persons elected by way of universal adult suffrage are deemed to be elected members of either the County Assembly or Parliament as the case may be. The law on this issue has been stated by the Supreme Court in Moses Mwicigi & 14 others[2016] eKLR (supra) at paragraph 117 as follows:

[117] It is clear to us that the Constitution provides for two modes of ‘election’. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way ofnomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’.

48. An issue urged by the 1st respondent is whether the threshold for a constitutional petition was met in the petitions filed at the High Court. In our considered view, the claims by the 1st and 2nd respondents not only met the threshold for a constitutional petition but also substantially met the threshold and grounds for an election petition. The substratum of the 1st respondents claim is founded on nomination to the County Assembly using Party List as an electoral process. In our view, the undisputed background facts in support of the 1st respondent’s claims in the constitutional petition and his claim founded on nomination to the County Assembly are intertwined and inseparable. Being intertwined and not severable, the specific election dispute resolution mechanism provided under the Constitution and the Elections Act is the procedure to be adopted. The mechanism provided is that an election petition is the only way to challenge post-gazettment electoral disputes.

49. On the question whether there is a specific constitutional or statutory bar to the High Court to entertain a constitutional petition on settlement of electoral disputes in relation to Membership to a County Assembly we answer in the affirmative. There is an express statutory bar to the original jurisdiction of the High Court to handle post-gazettment nomination or electoral disputes relating to Membership to the County Assembly. The original jurisdiction to hear and determine post-gazettment electoral disputes relating to membership to a County Assembly is vested upon the Magistrates Court. The High Court has appellate jurisdiction in respect disputes relating to post-gazettment of Members to a County Assembly. The express statutory bar is Section 75 (1A) of the Elections Act. The Section provides:

A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice.

50. In addition, Article 87 (1) of the Constitution enjoins Parliament to enact legislation to establish mechanism for timely settlement of election disputes. The Elections Act which give jurisdiction to the magistrates court has been enacted under the authority of the Constitution. It follows that the jurisdiction of the magistrates court to hear and determine election petitions relating to Membership of the County Assembly has Constitutional underpinning.

51. The appellate jurisdiction of the High Court to hear appeals from the Magistrates Court in relation to Membership to the Court Assemblies is conferred by Section 75 (4) of the Elections Act which provides that an appeal from a decision of the Magistrate’s court in an election petition lies to the High Court on matters of law only. In light of the provisions of Sections 75 (1A) and 75 (4) of the Elections Act, we are of the considered view that in election dispute resolution, when a specific procedure and forum has been provided for under the Constitution or Statute, that procedure and forum is the way to initiate and move the court that has the jurisdictional competence to hear and determine the dispute.

52. In the instant appeal, the 1st and 2nd respondents have urged us to find that the Magistrates Court is not the proper forum to hear and determine Bill of Rights disputes on violation of minority rights and protection and enforcement of rights of marginalized communities even if the substance of the dispute arises from or is related to nomination or elections. We decline to make such a finding. The Magistrate’s court has original jurisdiction to hear and determine post-gazettment election disputes on membership to the County Assembly. Whatever ground that is raised in an election petition properly before the Magistrates court, the court has jurisdiction to hear and determine the same. There is no principle or rule of law that in an election petition properly before a Magistrates court, the court shall not have jurisdiction to hear and determine any ground urged in violation of the Bill of Rights. It is opportune to recall that an election court is a court with specialized jurisdiction and in this context, a Magistrates court sitting as an election court hearing disputes on Membership to the County Assembly is a specialized court. As an election court, the magistrate has jurisdiction to hear and determine any and all grounds raised in an election petition properly before it. In this regard, we are reminded of the dictum of the Supreme Court in Peter Ngoge –v - Francis Ole Kaparo and Five Others, Sup. Ct. Petition No. 2 of 2012, [2012] eKLR, where it was stated that:

“In the interpretation of any law….., the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law….”

53. In this appeal, we have also considered dicta in Thande -v- Montgomery (1970) EA 341, in which the East African Court of Appeal held that nominations to stand for elections is part of the election process and as such, can only be challenged after the election by way of an election petition. In Mwihia & another -v-Ayah & Another [2008] 1 KLR (EP) 450, 456-458it was held that nominations to stand for elections are part of the election process and as such, they could only be challenged after the elections by way of an election petition. In Kipkalya Kiprono Kones -vs- The Republic & Another Ex-parte Kimani Wanyoike & 4 Others [2006] eKLRit was held that an election petition was the only valid means of challenging an election and the court would only be seized with the Petition once the election results have been declared.

54. Guided by the foregoing judicial decisions, this Court in Kennedy Moki -v - Rachel Kaki Nyamai & 2 others [2018] eKLR, expressed itself as follows:

“56. Notwithstanding the foregoing, we are alive to dicta which state that an election court is the proper forum at which to challenge by way of petition nomination disputes. On our part, having reviewed the case law, we are persuaded that the dicta in Kipkalya Kiprono Kones -vs- The Republic & Another Ex-parte Kimani Wanyoike & 4 Others [2006] eKLR is good law where it was held that an election petition was the only valid means of challenging an election. All other proceedings before PPDT or Judicial Review are not proceedings challenging the declared results of an election and such proceedings cannot vitiate or validate the declared results of an election. We are also persuaded with dicta in Mwihia & another -v- Ayah & another [2008] 1 KLR (EP) 450 where it was held that nominations to stand for elections are part of the election process and as such, they could only be challenged after the elections by way of an election petition. We are further convinced that the decision in Wamboko -v- Kibunguchi & another, (2008) 2 KLR 477,is good law where it was held that an election court has jurisdiction to hear and determine a petition where one of the issues is nomination of a candidate - as nomination is a process of election.”

55. In the instant appeal, the issue at hand is whether the trial court had jurisdiction to hear and determine a nomination dispute relating to membership of the Lodwar County Assembly. In our considered view, the High Court had no jurisdiction for the following reasons:

(a) Party nomination disputes after gazettment by the IEBC can only be heard and determined by way of an election petition. Neither a judicial review application nor a constitutional petition can resolve or initiate electoral dispute resolution after gazettment of nomination or election results.

(b) As regards membership to the County Assembly, jurisdiction to hear an election petition is vested upon the Magistrates Court and not the High Court. In the instant case, the petition filed by the 1st and 2nd respondent at the High Court in Lodwar were not election petitions before an election court presided over by a Magistrate duly gazetted by the Chief Justice.

(c) In addition, the prayers sought by the 1st and 2nd respondents in the Petitions before the High Court include prayer for de-gazettment of the 4th and 5th respondents who had already been gazetted as Members of the Lodwar County Assembly. The jurisdiction to deal with any such disputes after gazettment lies with the Magistrates court which can only be moved by way of an election petition.

(d) The 1st and 2nd respondents cannot through draftsmanship and legal craftsmanship through pleadings in Petition Nos. 2 and 3 of 2017 confer jurisdiction upon the High Court.

56. In our decision in the instant matter, we are guided and bound by the Supreme Court decision in Moses Mwicigi & 14 others (supra) where the Court statedthat any contest to an election, whatever its manifestation, is to be by way of ‘election petition’. Guided by the judicial authorities cited and bound by the Supreme Court, we find that this appeal has merit. We reiterate that a court with original jurisdiction cannot nullify or cancel results for any electoral seat under the Constitution or Elections Act unless the court is moved as an election court by way of an election petition. For avoidance of doubt, the High Court sitting qua High Court with its original and unlimited jurisdiction under Article 165 (3) of the Constitutionis not an election court envisaged under Article 87 (1) of the Constitution. Further, the High Court in exercise of its jurisdiction under Article 165 cannot nullify or cancel the results of an election. We reiterate that a constitutional petition or judicial review proceedings is not an election petition and it is not the mechanism for settling election disputes envisioned under Article 87 (1) of the Constitution.

57. For the various reasons stated above, we are satisfied that the trial court erred in dismissing the Preliminary Objections filed before it. This appeal has merit and is hereby allowed. We set aside the Ruling of the High Court dated 4th April 2018 and all consequential orders. All the preliminary objections filed before the High Court be and are hereby upheld. It is hereby declared that the High Court lacks jurisdiction to entertain, hear and determine Constitution Petition Nos. 2 and 3 of 2017 filed at the Lodwar High Court. Each party is to bear his//her/its costs in this appeal.

Dated and delivered at Eldoret this 4th day of October, 2018

E. M. GITHINJI

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL

OTIENO-ODEK

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JUDGE OF APPEAL

I certify that this is a true copy

of the original

DEPUTY REGISTRAR