[2022] KEHC 10054 (KLR)

Otieno & another v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Petition E002 of 2022) [2022] KEHC 10054 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10054 (KLR)

Republic of Kenya

In the High Court at Migori

Petition E002 of 2022

RPV Wendoh, J

July 6, 2022

IN THE MATTER OF CONTRAVENTION OF ARTICLE 24 (1) (2) AND 10 (2) (C) OF THE CONSTITUTION OF KENYA 2010 IN THE MATTER OF CONTRAVENTION OF SECTION 43 (5) AND (6) OF THE ELECTIONS ACT NO. 24 OF 2011 IN THE MATTER OF CONTRAVENTION OF SECTION 23 (2) AND (3) OF THE LEADERSHP AND INTEGRITY ACT, 2012 IN THE MATTER OF CONTRAVENTION OF SECTION 12 (1) OF THE POLITICAL PARTIES ACT NO. 11 OF 2011

Between

Calvince Otieno

1st Petitioner

John Frederick

2nd Petitioner

and

Independent Electoral and Boundaries Commission (IEBC)

1st Respondent

Retuning Officer Rongo Constituency

2nd Respondent

Gershom Okoth Njoga

3rd Respondent

Judgment

1. The instant petition dated 9/6/2022 was filed by Calvince Otieno and John Frederick (the petitioners) through the firm of Tawo & Co. Advocates. The petitioners are challenging the clearance of the 3rd respondent’s candidature as a contender of the Member of County Assembly Seat (MCA) for South Kamagambo Ward by the 1st and 2nd respondents. In support of their petition, the petitioners jointly swore an undated and uncommissioned affidavit together with annexures marked “COJF-1 - COJF-8 and submissions dated 24/6/2022.

2. It is the petitioners’ case that the 3rd respondent had through social media platforms announced that he had resigned from the Teachers Service Commission through a letter dated 4/2/2022; that they took the initiative of seeking clarification vide a letter dated 15/5/2022 from the 3rd respondent’s employer, the Teachers’ Service Commission which letter elicited a response from the Principal of Pala Secondary School who stated that the 3rd respondent deserted work on 26/4/2022; that the Teachers Service Commission summoned the 3rd respondent by a letter dated 25/5/2022 to give evidence in a disciplinary (meeting) which they did.

3. The petitioners averred that the 3rd respondent failed, ignored and/or refused to resign from the public service in breach of Section 43 (5) and (6) of the Elections Act and the circular from the Teachers Service Commission No. 2/2022. It was further averred by the petitioners that they wrote a letter dated 30/5/2022 to the 2nd respondent asking him to refrain from clearing the 3rd respondent but he ignored the letter and cleared him and issued him a with certificate.

4. It was also pleaded by the petitioners that they wrote another letter dated 7/6/2022 to the 1st respondent asking them to disqualify the 3rd respondent; that the petitioners are also in receipt of a report from the Ethics and Anti - Corruption Commission citing the 3rd respondent as one of the persons who failed to resign from the public service by 9/2/2022 as required by law.

5. From the foregone grounds, the petitioners seek the following prayers:-1. A Declaration that the clearance of the 3rd respondent by the 2nd respondent to run for the position of Member of County Assembly South Kamagambo ward is unconstitutional.2. A Declaration that the 3rd respondent is ineligible to run for office for the position of Member County Assembly South Kamagambo.3. An order of Mandamus compelling the 2nd respondent to rescind, revoke and nullify the nomination certificate issued to the 3rd respondent by themselves.4. An order of Certiorari be issued to bring to into this court and quash the 2nd respondent’s decision to clear the 3rd respondent.5. A Prohibition order do issue to forbid and prohibit the 1st and 2nd respondents from allowing the 3rd respondent from participating in the election.6. Costs of the suit.

6. The petition was opposed. The 1st and 2nd respondents through the firm of Olendo, Orare & Samba Advocates filed grounds of opposition, a notice of preliminary objection and submissions, all dated 23/6/2022.

7. The 1st and 2nd respondent’s the petitioners’ grounds are as follows:-a.That this court lacks jurisdiction to entertain this petition and application by dint of Article 87 of the Constitution and Section 39, 40 and 41 of the Political Parties Act;b.That the petition and the application lack locus before this court as they have been brought prematurely before invoking and/or exhausting the dispute resolution mechanisms under the Constitution, the Elections Act and Political Parties Act;c.That Article 88(4)(e) of the Constitution as read with Section 74 of the Elections Act mandate the 1 strespondent to solve disputes relating to or arising from nominations as presented by the petitioners and yet the petitioners have not sought the intervention of the 1**st respondent at all;d.That through Gazette Notice No. 435 of Volume CXXIV No. 14 of January 20, 2022 the petitioners were duly notified and reminded as early as January 2022 of the IEBC’s mandate and timelines to resolve disputes relating to or arising out of nominations, last day for lodging such disputes being 9/6/2022;e.That theIEBC has strict and constitutional timelines to comply with and the petitioners’ application and petition seek to interfere with the said timelines to the detriment of the whole electoral process and to the prejudice at large albeit constitutional timelines cannot be injuncted;f.That the petition and application on its face as presented is an afterthought and an abuse of the court process. The petitioners have not filed any complaint and/or any when the 3rd respondent participated in the Orange Democratic Party Primaries when he became 2nd only for them to bring this petition after the 3 rd respondent declared that he will pursue the same as an independent candidate;g.That the petition and the application are unmerited and an abuse of the court process.

8. The 1st and 2nd respondents’ notice of preliminary objection echoed the grounds of opposition and raised the issue of the jurisdiction of this court to hear and determine the instant petition.

9. The firm of Kwanga Mboya Advocates are on record for the 3rd respondent. The 3rd respondent filed a response to the petition, a replying affidavit and a notice of preliminary objection all dated 21/6/2022 and written submissions dated 27/6/2022.

10. The 3rd respondent admitted that he was an employee of the Teachers Service Commission until 4/2/2022 when he officially tendered his resignation. The 3rd respondent denied having knowledge of the letter alluded to by the petitioners in paragraphs 10 and 11 of their petition and stated that his clearance to vie as a member of County Assembly nominee of the Orange Democratic Movement Party was based on a letter which was received and stamped by the TSC on 4/2/2022; that the letter marked as “COJF-1” in the petitioners’ annexures does not have a TSC stamp; that he had never attended any disciplinary proceedings as he was no longer an employee of the TSC nor has the results of the said disciplinary meeting been conveyed to him; that he has never been summoned or charged by the EACC or any investigative body and found guilty of any misconduct.

11. The 3rd respondent further stated that the petition falls short of the test of public interest litigation as the averments contained in the petition are riddled with falsehoods and the petition is devoid of candour.

12. The 3rd respondent’s notice of preliminary objection raised the issue of jurisdiction. The grounds are that the petition offends the provisions of Article 88 (1) and 4 (e) & (f), 38, 99 (1) and (2) of the Kenyan Constitution and Sections 80 and 81 of the Evidence Act. The objection also raised an issue that the prayers in the petition are not in tandem with the title of the application and can only be brought under the Law Reform Act, Cap 26 Laws of Kenya, Order 53 Rule 2 of the Civil Procedure Rulesand only with leave of court which has not been done. Therefore, the petition is bad in law and legally untenable.

13. Directions were taken on the hearing of the Petition. All parties complied and filed their respective documents and submissions . In addition, the court directed that parties through their respective Counsel, would highlight their submissions on 28/6/2022 at 10. 00a.m. Counsel for the petitioners did not appear in court. Mr. Onyango who was holding brief for Mr. Olendo for the 1st and 2nd respondents asked this court to first consider the notice of preliminary objection and he chose to rely wholly on their submissions. Mr. Adawo, for the 3rd respondent highlighted his submissions.

14. Mr. Adawo submitted under four heads namely:- Type of petition, Jurisdiction, Grounds for disqualification and Nature of evidence.

15. On the type of petition, Mr. Adawo submitted that it was not clear whether the case before court was a constitutional or election petition; that the body shows that it is an election petition. He urged that the petitioners are challenging the manner in which the 3rd respondent was cleared; that throughout the petition it talks about a dispute and the petitioners are saying that the 3rd respondent was a public servant and he should not have been cleared.

16. On the issue of jurisdiction, Mr. Adawo submitted that this is a pre-election dispute; that since the petitioners are bound by their pleadings, Article 88 of the Constitution places this dispute before the IEBC Dispute Resolution Committee and the court should make a finding that this being a pre-election dispute, it has no jurisdiction.

17. On the grounds of disqualification, Mr. Adawo asked this court to consider Articles 193 (3) and 2 (a) of the Constitution which provides for the disqualification of a Member of County Assembly. Further, that the petitioners have stated that the 3rd respondent is under investigations but they have not provided evidence to that effect.

18. On the nature of evidence, it was submitted that the 3rd respondent has produced a letter “GON1” which is his resignation letter from the TSC and it was received on 4/2/2022 as proof that he resigned within the required time that is before 9/2/2022 being 6 months clear before the elections. It was also submitted that the documents filed by the petitioners and marked as “COJF2”, “COFJ 3 (b), 4, 5, & 8” are not the petitioners’ documents but they belong to other parties hence cannot produce them. Mr. Adawo submitted that it is only the makers of the documents who can produce them or if the makers are not available,Sections 80 and 81 of the Evidence Act provides guidelines on how such documents should be produced. Counsel urged this court to find that the documents are not properly on record and the petition should be dismissed taking into account the objection, the submissions and the cases relied upon.

19. The 1st and 2nd respondents submissions mainly addressed the issue of this court’s jurisdiction. Briefly, it was submitted that the 1st respondent is an independent commission with constitutional and statutory mandate to solve disputes emanating from nomination of candidates to elective posts; that Article 88 (4) (d) & (e)of the Constitution and Section 4 of the IEBC Act gives the 1st respondent the mandate to settle electoral disputes relating to or arising from nominations.

20. The 1st and 2nd respondents relied on Court of Appeal decisions in Eric Kyalo Mutua vs Wiper Democratic Movement Kenya & Another(2017) eKLR and Fredrick Odhiambo Oyugi vs Orange Democratic Movement (ODM) & 2others (2017) eKLR. The 1st and 2nd respondents implored this court to find that this petition and application are frivolous and should be dismissed with costs.

22. The petitioners filed their submissions dated 24/6/2022 and submitted on three heads. On the issue of jurisdiction, it was submitted that Article 165 of the Constitution grants this court jurisdiction to hear any question on the interpretation of the law; that the decision by the 1st respondent to clear the 3rd respondent, was in contravention of the guiding values and principles laid down in Article 10 of the Constitution as read with Chapter 6 of the Constitution on leadership and integrity; that the petitioners seek to enforce their right to fair administrative action under Article 47 of the Constitution; that the High Court is also mandated under Article 23 and 165 of the Constitution to hear and determine applications for redress of a denial, violation or infringement of fundamental freedoms in the Bill of Rights. The petitioner relied on the cases of Republic vs National Environmental Management Authority (2011) eKLR and Harun Mohamed Yussuf vs Teachers Service Commission & Another (2012) eKLR.

23. On whether the 3rd respondent resigned from the public service within the set timelines, it was submitted that the 3rd respondent did not resign and wholly relied on the annexures marked “COJF 3 (a), (b) and (4).” It was also submitted that even through the 3rd respondent asserts that he resigned through a copy of letter dated 4/2/2022 addressed to the Chief Executive Nairobi, the proper procedure for resignation is outlined in Part VII of the Code of Regulation for Teachers 2015.

24. Further, the (petitioners) submitted that the 3rd respondent is listed in the EACC report as having questionable integrity for the simple reason that he failed to resign by 9/2/2022; that Article 260 of the Constitution defines a public officer and at all material times the 3rd respondent was a teacher employed by the Teachers’ Service Commission bound by the provisions of Section 45 (3) of the Elections Act which requires all public officers to resign 6 months before running for an elective post.

25. On whether the 1st and 2nd respondents’ actions of clearing the 3rd respondent herein was unconstitutional, it was submitted that the 1st respondent has both Constitutional and statutory mandate to ensure that everyone meets the minimum qualifications laid down by law. The petitioners submitted that the court should find that the 1st and 2nd respondents’ decision to clear the 3rd respondent despite his failure to meet the minimum qualifications is unconstitutional.

26. I have carefully considered the petition, the responses thereto by the respondents, the annexures relied upon by each party, the notices of preliminary objection raised by the respondents and both the written and oral submissions of the parties through their Counsel. The issues for determination are thus:-i.Whether the petition is competent.ii.Whether this court has jurisdiction to hear and determine this petition.iii.Whether the 1st and 2nd respondents acted within the law in clearing the 3rd respondent to vie for the Member of County Assembly South Kamagambo.iv.Whether the 3rd respondent is eligible to run for the Member of County Assembly South Kamagambo Seat.

27. On the competency of the petition filed, at the beginning of this judgement, I made an observation that the affidavit accompanying the petition is undated and uncommissioned.

28. The 10th Edition Black’s Law Dictionary at page 68 defines an affidavit as follows:-"A voluntary declaration of facts written down and sworn to by a declarant before an officer authorised to administer oaths.”

29. The making of affidavits is governed by the Oaths and Declaration ActChapter 15 Laws of Kenya. Section 5 outlines what particulars will be stated in the jurat or attestation clause. It provides:-"Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

30. Further, Section 8 states:-"A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.”

31. From the above provisions, it can be deduced that an affidavit must state the place and date the oath is taken and it should be in the presence of a Magistrate or Commissioner for Oaths.

32. The Supreme Court of Kenya in the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others (2018) eKLRmade the observation:-"We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent.”

32. Lady Justice Maureen Odero J in Z–U-DG v SJK-U(2021)eKLR held as follows:-"An Affidavit is a statement made on oath. It is the jurat which elevates a written statement to the status of an Affidavit. Without a jurat and in absence of commissioning by a Commissioner of Oaths, a Magistrate or a Notary public the statement remains a mere unsworn written document and does not have the legal value of an Affidavit.”

33. To add its voice, this court makes a finding that an affidavit also carries evidence which a party relies upon. The importance of commissioning the affidavit is an affirmation that the deponent wants to assure the court that the evidence he produces can be relied on by the court. An unsworn affidavit makes the documents annexed legally untenable before any court of law. In the absence of such an affirmation, it only makes the affidavit as was stated in the case of Z-U-DG v SJK-U (supra) a document with no legal value.

34. The Supreme Court in Gideon Sitelu Konchellah (suprafurther held: -"A Replying Affidavit is the principal document wherein a respondent’s reply is set and the basis of any submissions and/or List of Authorities that may be subsequently filed. Absence of this foundational pleading, the Replying Affidavit, it follows that even the Written Submissions purportedly filed by the 1st Respondent on 17th August, 2018 are of no effect. Curiously, we further note that even the said Written Submissions are not dated, though this possibly might not have been fatal had the foundational document, the Replying Affidavit, been in order. From a perusal of the Written Submissions, it is clear to us that they are substantially based and relies on the undated and unsworn Replying Affidavit. Also, there are no Grounds of Objection raising any specific points of law of any preliminary or jurisdictional nature. The upshot is that as the 2nd and 3rd Respondents had categorically stated that they do not oppose the application, the Court will therefore be excused for therefore deeming the application as opposed entirely.”

35. In this petition, the affidavit in support of the petition has several errors:-The jurat which has the words ‘Sworn at Kisumu by the said’ is on a different page from the part of the jurat which has the names and the signatures of the petitioners.The said affidavit is also not dated or commissioned.

36. Further, the supporting affidavit which accompanies the application is neither dated nor commissioned. Even if there are two other commissioned and dated affidavits which follow the uncommissioned affidavit, an application cannot be accompanied by three different conflicting affidavits. It is not the work of this court to assume the clerical or secretarial duty of Counsel to arrange his documents before filing them in court or rather, second guess the document Counsel intended to file.

37. Article 159 of the Constitution cannot come as a saving grace to the petitioner at this instance. The said Article cannot be used to circumvent the mandatory rules of practice laid down in law. This is not a mere technicality. In the case of Raila Odinga vs I.E.B.C & 2others (2012) eKLR the Supreme Court held:-"Article 159 (2) (d) of the Constitution simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.”

38. The petition therefore is not competent. In the absence of a proper affidavit in support of the petition, due to the omission to commission it, the petition is defective as there is no evidence to support the prayers sought in the petition. The petition is fatally incompetent.

39. I am reminded of the words in M’Rithara M’ Ikiome (Deceased) v H. Young Company Ltd &another (2016) eKLR where the court said:-"Sometimes, parties should be allowed to suffer the consequences of their advocates’ mistakes and be left to seek remedies available under the law and especially the Advocates Act.”

40. At this point, the court can properly down its tools but I am inclined to address the issue raised by the 3rd respondent on the propriety of the petition and the prayers sought in the petition which was a ground in the preliminary objection. The 3rd respondent stated that the petition can only be brought under the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules and only with leave of court.

41. I have considered the prayers being sought in the petition. The petitioners are asking this court to make orders of Mandamus, Certiorari and Prohibition against the 1st and 2nd respondents from clearing the 3rd respondent as a candidate to vie for the elective post of Member County Assembly South Kamagambo.

44. The orders being sought are in the nature of judicial review orders . The purpose of judicial review was spelt out by the Court of Appeal in the case of:- Municipal Council of Mombasa vs Republic Umoja ConsultantsLtd, Nairobi Civil Appeal No. 185 of 2007 7(2002) eKLR, as follows:-"The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.

45. The scope of Judicial Review was explained in the case of Kenya National Examination Council vs Republic Exparte Geoffrey Gathenji & 9others, Nairobi Civil Appeal No.266 of 1996 (1997) eKLR where the Court of Appeal held:-"That now brings us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case. 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 or 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 – See Halsbury’s Law of England, 4th Edition vol.1 at Pg.37 paragraph 128. ”

46. Judicial Review is not concerned with the merits or demerits of a decision of an inferior court, tribunal or a public body. It is only concerned with the process of reaching the final decision. The court will consider whether the decision maker took into account relevant or irrelevant matters before making the decision or whether the persons affected by the decision was given a fair hearing.

47. The petitioners have not adequately demonstrated how, when and if they filed a complaint before the 1st respondent challenging the clearance of the 3rd respondent. A letter addressed to the 1st respondent raising the concerns on the candidature of the 3rd respondent is not conclusive that a dispute had been lodged and a decision made for this court to intervene by issuing judicial writs.

48. This being a pre-election dispute, Article 88 (4) (e) of the Constitution as read together with Section 4 (e) of the Independent and Boundaries Elections Act and Section 74 of the Elections Act, the jurisdiction to hear and determine pre - election dispute rests with the 2nd respondent. That is the first point of call for any party aggrieved by the clearance of any candidate who wishes to be elected in the forthcoming general elections. There is already a properly constituted dispute committee which has been hearing disputes. The right of appeal lies to the High Court. See the decision of Odunga J in Judicial Review Misc. Application No. 301 of 2017 Republic vs Independent Electoral and Boundaries Commission & 2 Others ex-parte Wavinya Ndeti(2017) eKLR and the Supreme Court findings in Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others(2019) eKLR.

49. If petitioners followed the procedures laid down by the law, their judicial review petition at this point would be legally sound; since there would be a decision for this court to exercise its review powers. There is no decision in existence that this court can be called upon to review.

50. Not only is this petition incompetent in light of the uncommissioned affidavit, but even if it was competent, this court would have to down its tools since it does not have the requisite jurisdiction in the first instance.

51. The petition stands defective ab initio. I dismiss it in its entirety with costs to the respondents.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 6TH DAY OF JULY, 2022R. WENDOHJUDGEJudgment delivered in the presence of;Mr. Odhiambo holding brief Mr. Tawo for the Petitioner.Mr. Olande for the 1st and 2nd Respondents.Mr. Adawo for the 3rd RespondentNyauke Court Assistant