[2022] KEHC 9820 (KLR)

Otieno v Independent Electoral and Boundaries Commission Dispute Resolution Committee & another (Election Petition 5B of 2022) [2022] KEHC 9820 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9820 (KLR)

Republic of Kenya

In the High Court at Migori

Election Petition 5B of 2022

RPV Wendoh, J

July 15, 2022

(FORMELY NAIROBI E319 OF 2022) IN THE MATTER OF ARTICLES: 2, 10, 19, 20, 21, 22, 23, 47, 48, 159 AND 165 (30) (d) (ii) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF : CONTRAVENTION OF ARTICLES 19, 22, 23, 38, 47 AND 48 OF THE CONSTITUTION AND IN THE MATTER OF : A COMPLAINT LODGED BY SAMUEL OTIENO OTIENO

AND IN THE MATTER OF: INDEPENDENT AND ELECTORAL AND BOUNDARIES COMMISSION ACT AND IN THE MATTER OF: CONSTITUTIONAL STATUTORY VALIDITY AND POWERS, ROLES AND AUTHORITY OF IEBC DISPUTES RESOLUTION COMMITTEE AND IN THE MATTER OF: EVIDENCE ACT CAP 80 LAWS OF KENYA AND IN THE MATTER OF: POLITICAL PARTIES ACT LAWS OF KENYA

Between

Samwel Otieno Otieno

Petitioner

and

Independent Electoral and Boundaries Commission Dispute Resolution Committee

1st Respondent

Independent Electoral & Boundaries Commission (IEBC)

2nd Respondent

Judgment

1. The instant petition is dated 25/6/2022 and was commenced by Samwel Otieno Otieno (the petitioner) through the firm of Oduor Henry John & Co. Advocates. The petition is supported by the affidavit of the petitioner dated evenly, a supplementary affidavit, a joint affidavit by Joshua Ochieng Owira, Stephen Omondi Okoth, Evans Ombato, Moses Okoth Otieno and Enock Ouma Mway and submissions all dated 5/7/2022.

2. The grounds in support of the petition are that on the night of 30/5/2022, the petitioners’ staff at Rongo were cross checking his supporters’ documents in readiness for presenting them to the 2nd respondent’s returning officer at Rongo the following day; that they were arrested by police officers from Kamagambo Police Station and the hard copies of the supporters’ list comprising the supporters’ signatures, the national identity cards, soft copy in the USB and the desk top computer were confiscated by the said police officers; that the petitioners’ staff and the aforesaid items were taken to Kamagambo Police Station and booked under OB No. 2/31/5/2022; that the petitioner tried to have the documents released on the last day for submissions, that is, on 31/5/2022, to no avail.

3. It was further deponed that the petitioner informed the Returning Officer of the 2nd respondent via WhatsApp and text messages on 31/5/2022 at 11:58 a.m. of his predicament but the agent replied that the issue was outside his jurisdiction; that being the last day for the submissions of documents and time was running out, the petitioner submitted what he had minus the list of supporters, the USB data and the copies of the national identity cards of his supporters on the list; that the Returning Officer Rongo Constituency received the documents minus the missing ones; that the Kamagambo Police Officers released the staff and the items of the petitioners on 31/5/2022 late in the evening past the time required to submit the documents.

4. It is the petitioner’s case that given the issue was beyond the 2nd respondent’s office at Rongo, the only option he had was to lodge a complaint with the 1st respondent; that the petitioner wrote a letter to the Kamagambo Police Station to be provided with the occurrence book extract of the arrest but they refused to accept the same; that his Counsel drafted the Complaint dated 2/6/2022 and lodged the same with the 1st respondent on 3/6/2022; that on hearing the Complaint on 13/6/2022, the 2nd respondent’s Returning Officer gave evidence on oath and confirmed that he was aware of the petitioner’s predicament and the writing on Form 15 were his.

5. Further, the petitioner contended that the 1st respondent in its ruling dismissing his Complaint, misdirected itself and his rights to Fair Administrative Action were violated as envisaged under Article 47 of the Constitution. The petitioner further contended that he is likely to suffer loss and damage if the 2nd respondent were to proceed and implement the impugned decision of the 1st respondent dated 17/6/2022 without allowing the petitioner to submit his documents. The petitioner asked this court to allow the petition as prayed and grant the following orders:-i.An Order directing the 2nd Respondent to allow the Petitioner to submit his documents mentioned in Form 15 by the Returning Officer for determination of his clearance and participation in the general elections of 9th August 2022. ii.A Declaration that the 1st Respondent misdirected itself in dismissing the Petitioner’s Complaint.iii.Costs of this suit.iv.Any other relief this court may deem necessary to grant.

6. The petition was opposed. The 2nd respondent entered appearance through the firm of Ochieng Opiyo & Co. Advocates. The 2nd respondent filed a replying affidavit dated and sworn on 4/7/2022 by Chrispine Owiye the Director Legal and Public Affairs of the 2nd respondent. Counsel admitted that the petitioner lodged a Complaint against the decision of the Returning Officer Rongo Constituency under Reference DRC No. 33 of 2022; that the petitioner was represented by Counsel before the 1st respondent and he was given a fair hearing on 14/6/2022; that the 1st respondent rendered its decision on 17/6/2022 in which it dismissed the petitioner’s complaint for lack of evidence.

7. Further, it was deponed that the sole reason advanced by the petitioner for his failure to submit all the required documents before the Returning Officer - Rongo Constituency was that his items including the list of supporters had been confiscated by the Police; that the petitioner was given ample time between 3/5/2022 - 14/6/2022 to avail his evidence of the allegations but he failed to do so; that the petitioner neither provided the Occurrence Book Extract nor called any witnesses from the said police station to support his claims; that the Returning Officer upon being called by the petitioner, rescheduled the time the petitioner was to appear before him from 9. 00 a.m. to 3. 30 p.m.

8. Further to the foregoing, it was deponed that the petitioner was accorded a fair hearing and opportunity to exercise his political and legal rights but he failed to do so; that instead he asked the Tribunal to summon the Officer In Charge of the Police Station which is beyond the purview of the 1st respondent; that if at all the petitioner’s rights were violated then he ought to have sued the Office of the Inspector General of Police and the National Police Service in these proceedings prior to filing the dispute with the 1st respondent for the arbitrary arrest and/or detention of his staff.

9. Counsel further deponed that if it is true that the petitioner’s staff were arrested on the night of 30/5/2022, the Occurrence Book Number would bear the number of the report but the date of the report is 2/31/5/2022 which indicates that if any arrest was done, it was on 31/5/2022 and that is the date when the petitioner was required to present his papers; that this petition was just an afterthought, unfounded, baseless and devoid of constitutional pedestal; that it falls short of the constitutional petitions threshold as it does not state with specificity which electoral laws have been violated by the respondents. The 2nd respondent asked this court to dismiss the petition.

10. In his supplementary affidavit, the petitioner reiterated that his staff together with the items which were confiscated were released to them unconditionally after the exercise of submitting documents at the 2nd respondent’s offices at Rongo had been closed; that he provided the Occurrence Book number as proof that his staff and the items had been confiscated by the Kamagambo police officers and the 2nd respondent is well aware that it is hard to get a witness from the police station; that this court can exercise its power and issue an order to the officer in charge of Kamagambo Police Station to avail the extract of O.B. No. 2/31/5/2022 which was recorded at 0031Hrs; that his staff were arrested on the night of 30/5/2022 and only taken to the police station on 31/5/2022 at 0031Hrs to book them; that at no time did the petitioner request the 1st respondent to summon the officer in charge of Kamagambo Police Station to appear before it; that the petitioner had to exhaust the mechanisms before approaching this court; that the petitioner was not accorded a fair hearing by the 1st respondent given that it based its decision on what was not before it which led to a wrong decision thus violating his constitutional rights.

11. In their joint affidavit, the deponents deposed that they were working on the night of 30/5/2022 on the documents that the petitioner needed for his clearance by the 2nd respondent when they were arrested by police officers from Kamagambo Police Station; that after their arrest, the police officers walked with them for a long time as they continued with their patrol and took them to the police station at 0031Hrs and they were booked under OB 2/31/5/2022; that they were released late in the evening of 31/5/2022 without being charged together with the confiscated item.

12. I have carefully considered the petition, the responses, the annexures relied upon by each party and the written submissions. The issues for determination are:-i.Whether the petition is competent.ii.Whether the petitioner’s constitutional rights were violated by the respondents.

13. The 2nd respondent challenged the competency of this petition. It was submitted that the only known way to institute proceedings to quash the decision of the 1st respondent was through Judicial Review proceedings as it was held in the case of Tom Ogalo Oluoch vs IEBC (Nairobi) Election Appeal No. 1 of 2017. It was also contended that the petition has not disclosed with specificity which constitutional provisions have been violated or how they were violated.

14. It is trite law that petitions must be drafted with a reasonable degree of precision so as to meet the ends of justice by enabling the court to discern the provisions that are alleged to be violated and the manner in which they were violated. This was the decision of the court in the celebrated case of Anarita Karimi Njeru vs Republic (1979) eKLR. The Court said:-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 reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed, and the manner in which they are alleged to be infringed.”

15. Though decided under the defunct Constitution, it is still good law even under the 2010 Constitution.

16. By the above, the Court should be able to identify the violations complained of, provide particulars of the alleged rights which entails detailing the manner in which the alleged rights were infringed. It is not enough to merely allege and leave the court to second guess what it is the petitioner wanted of the court.

17. Although the petitioner listed several provisions on the header of the petition, I note that it is only at paragraph 26 of the petition that he alleges that the 1st respondent in its decision delivered on 17/6/2022 misdirected and contradicted itself which led it to making a wrong decision and the petitioner’s rights to administrative action that is granted in Articles 20 and 47 were not violated hence Articles 20 and 47 were infringed.

18. To my mind, it is not clearly stated how the petitioner’s rights were infringed. If the 1st respondent misdirected and contradicted itself, it means it only made a wrong decision which should be the subject of appeal or judicial review. If there were grounds for seeking Judicial Review orders, under Article 23 of the Constitution, one can seek Judicial Review Orders besides declarations, injunction and even an order for compensation. I have seen prayers (i) seeks an order directing the 2nd respondent to allow the petitioner to submit the documents. The petitioner is not clear whether what he seeks is a Judicial Review order because the petitioner should have been specific, whether it is an order of Certiorari, Mandamus or Prohibition. This is because each of the Judicial Review Orders and subsequent remedies perform different functions as was held by the Court of Appeal in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (1997) eKLR as follows: -''What does an order of prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings….What is the scope and efficacy of an order of mandamus? an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.”

19. From the foregone, it is this court’s finding that the petition does not meet the threshold of a Constitutional Petition and it is therefore incompetent.

20. On whether the petitioner’s rights to Fair Administrative action were violated, the petitioner’s case is that the 1st respondent reached a finding by relying on evidence which was not before it. The Complaint that was filed by the petitioner before the 1st respondent was challenging the decision of the 2nd respondent’s Returning Officer Rongo Constituency to decline receiving his papers as an independent candidate. The proceedings before the 1st respondent are annexed to the 2nd respondent’s replying affidavit (CO-1). The petitioner was represented by his Counsel Mr. Oduor. Counsel told the Committee that it was only the list of the petitioner’s supporters that was missing. Counsel explained that the documents crucial for clearance of the petitioner were detained by the Police on the night of 30/5/2022 and released on 31/5/2022 after completion of the exercise. When one of the Members of the commission asked for evidence to prove whether the petitioner was truly arrested, Counsel responded that by doing further investigation and going to the OB number and reading what was recorded.

21. The Returning Officer gave his evidence on oath and admitted that he had talked to the petitioner and he explained his predicament. The Returning Officer rescheduled the appearance of the petitioner to 3. 30 p.m. but he still failed to produce the required documents. There is nothing so far on record to suggest that the petitioner was not given audience to ventilate his case. The petitioner was asked to produce evidence which he did not have at that time. The 1st respondent’s mandate is limited to hearing disputes as envisaged under Article 88 (4) (e) of the Constitution as read together with Section 74 of the Elections Act and Section 4 (e) of the Independent Electoral and Boundaries Commission Act.

22. The petitioner alleged that the arrest happened on the night of 30/5/2022 and his staff and documents were released back on 31/5/2022 when it was already past the clearance time. The Returning Officer stated that the reason why he rejected the petitioner’s papers was because the petitioner failed to produce the soft copy, the flash and the hard copy of the supporter’s templates and the copy of the supporters’ national identity cards; thus, he rejected the petitioner’s papers by invoking Regulation 24 of the Elections Regulations 2012. The petitioner acted with speed and filed his complaint before the committee on 2/6/2022. The petitioner and his witnesses in their joint affidavit stated that the documents which were confiscated by the police were released to them on the evening of 31/5/2022.

23. It is therefore curious that the petitioner at the point of filing his complaint before the 1st respondent, did not attempt to demonstrate that he was compliant by producing the required documents, save for the alleged arresting incidence that would have demonstrated good faith on his part. At the time when the petitioner was filing his complaint, the documents had already been released to him. He should have utilized that opportunity to show his readiness to being compliant. In the same vein, the petitioner has also not annexed to his petition any documents required for compliance. Even so, this court does make an observation that the 1st respondent made, that the petitioner did not call as witnesses his staff who were allegedly arrested with him. The said witnesses have now filed a joint affidavit at this stage which is not helpful to his case.

24. The decision which the petitioner sought to rely on, Pithon Mugambi Nguru vs IEBC & Daniel Lenarum (2017) eKLR is distinguishable from this case in that, the appellant was fully compliant having a nomination certificate at hand. However, he had to travel to the party’s headquarters to change the error in his name. While on transit, the appellant got involved in an accident and was unable to submit his certificate on time. The court faulted the decision of the IEBC Dispute Resolution Committee for upholding the decision of the Returning Officer not to accept the appellant’s nomination certificate. The decision of the court was based on the fact that the appellant was fully compliant but he was involved in an accident which was beyond his control.

25. In this instant, the petitioner has not demonstrated even after all the documents had been released to him, that he was compliant save that he may have been arrested by the police. Had the petitioner demonstrated compliance, despite the challenges he faced, which were beyond his control, this court would have reached a different finding.

26. The foregone position is that apart from the petition dated 25/6/2022 failing to meet the threshold of a Constitutional Petition in failing to plead with specificity, the alleged violations and prayers sought, it is also devoid of merit and the same is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 15TH DAY OF JULY 2022R. WENDOHJUDGEJudgment delivered in the presence of;Mr. Oduor appearing Virtually for the Petitioner.Mr. Ochieng for the 1st and 2nd RespondentsNyauke Court Assistant