[2022] KEHC 10027 (KLR)

Oyugi v Independent Electoral and Boundaries Commission & 8 others (Constitutional Petition E205 of 2022) [2022] KEHC 10027 (KLR) (Constitutional and Human Rights) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10027 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E205 of 2022

AC Mrima, J

May 13, 2022

Between

Steve Biko Oyugi

Petitioner

and

Independent Electoral and Boundaries Commission & 8 others

Respondent

Ruling

1. The Petition in this matter arose from the Petitioner’s discovery that he was a registered member of the United Democratic Alliance, the 3rd Respondent in these proceedings.

2. The Petitioner vehemently denied any membership to any political party since he was in the process of registering his own political party and is aware that one cannot belong to more than one political party.

3. Upon the realization, the Petitioner lodged complaints with the 2nd, 3rd, 4th, 5th, 6th and 9th Respondents. According to the Petitioner, none of the complaints has so far been conclusively dealt with, hence, the current proceedings.

4. None of the Respondents participated in this matter.

5. The Petitioner made submissions in requesting the Court to grant the conservatory orders sought in the Notice of Motion dated 9th May, 2022. The conservatory orders aim at barring the 1st Respondent from receiving, processing and clearing of any candidate for any electoral seats arising from nominations conducted by political parties for purposes of the general election scheduled for the 9th August, 2022.

6. Given that the Petitioner made several complaints over the allegedly unconsented registration to the 3rd Respondent and that such complaints are still pending, suffice to look at whether this Court has jurisdiction over the issues raised in the Petition.

7. The Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (2022) KECA 15 (KLR) in a decision rendered on 8th February, 2022 had the following to say on the aspect of jurisdiction: -36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.37. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:…Jurisdiction is everything. 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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.38. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.39. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.40. In Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(68).A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

8. The Supreme Court in Petition No. 7 of 2013 Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis.

9. Returning to the matter at hand, there is no doubt that the dispute relates to the elections scheduled for 9th August, 2022. It is, therefore, a pre-election dispute.

10. I will now look at how the Constitution and the law provides for pre-election disputes.

11. Article 82(1) of the Constitution provides as follows: -Parliament shall enact legislation to provide for-(a)the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;(b)the nomination of candidates;(c)the continuous registration of citizens as voters;(d)the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and(e)the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.

12. In Article 88, the Constitution established the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the 1st Respondent’, ‘the IEBC’ or ‘the Commission’). It provides as follows: -(1)There is established the Independent Electoral and Boundaries Commission.(2)A person is not eligible for appointment as a member of the Commission if the person--(a)has, at any time within the preceding five years, held office, or stood for election as--(i)a member of Parliament or of a county assembly; or(ii)a member of the governing body of a political party; or(b)holds any State Office.(3)A member of the Commission shall not hold another public office.(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.(5)The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.

13. Section 74 of the Elections Act further provides for the settlement of disputes as follows: -74. Settlement of certain disputes:(1)Pursuant to Article 88 (4) (e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.(2)An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3)Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

14. Section 4 of the Independent Electoral and Boundaries Commission Act (hereinafter referred to as ‘the IEBC Act’) provides the functions of the Commission as follows: -4. Functions of the Commission:As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards in accordance with the Constitution;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development and enforcement of a code of conduct for candidates and parties contesting elections;(k)the monitoring of compliance with the legislation required by Article 82(1)(b) of the Constitution relating to nomination of candidates by parties;(l)deleted by Act No. 36 of 2016, s. 30;(m)the use of appropriate technology and approaches in the performance of its functions; and(n)such other functions as are provided for by the Constitution or any other written law

15. There is also Section 40 of the Political Parties Act, No. 11 of 2011 which provides for the jurisdiction of the Political Parties Disputes Tribunal (hereinafter referred to as ‘the Tribunal’). The Tribunal is established under Section 39 of the said Act.

16. The jurisdiction of the Tribunal is provided as follows: -(1)The Tribunal shall determine-(a)disputes between the members of a political party;(b)disputes between a member of a political party and the political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners;(f)appeals from decisions of the Registrar under this Act; and(g)disputes arising out of party nominations.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.(3)A coalition agreement shall provide for internal dispute resolution mechanisms.

17. The Constitution and the law, therefore, primarily creates two avenues for settlement of pre-election disputes since any dispute arising out of the declaration of the results of an election is a preserve of the Courts.

18. The two avenues are the Commission under Articles 82 and 88 of the Constitution, Section 74 of the Elections Act and Section 4 of the IEBC Act and the Tribunal under Sections 39 and 40 of the Political Parties Act.

19. It is settled in law that whenever the Constitution and/or the law provides for an avenue for dispute resolution, such must be strictly adhered to. In this matter, I will ascertain whether it is the Commission, the Tribunal or this Court which has jurisdiction over the subject dispute.

20. However, before doing so, I will attempt a brief look at the doctrine of exhaustion of remedies.

21. The doctrine of exhaustion in Kenya traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-(a)….........(b)…...........(c)alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

22. Clause 3 is on traditional dispute resolution mechanisms.

23. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the {Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

24. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.

25. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR held as follows: -The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs. Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.

26. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.

27. As pointed out, the matter relates to a pre-election dispute. From the above discussion, it is the position that the Commission and the Tribunal have specific and well demarcated functions.

28. The dispute is multi-faceted. The Petitioner has unresolved complaints against the 2nd, 3rd, 4th, 5th and 9th Respondents.

29. Section 40 of the Political Parties Act gives the Tribunal jurisdiction over disputes between the members of a political party, disputes between a member of a political party and the political party, disputes between political parties, disputes between an independent candidate and a political party, disputes between coalition partners, appeals from decisions of the Registrar and disputes arising out of party nominations.

30. Deriving from the law and as matters stand, the Petitioner’s complaint against the 2nd Respondent is a preserve of the Tribunal. I say so because the 2nd Respondent has since failed or refused to determine the complaint before it. According to Section 2 of the Fair Administrative Actions Act, No. 4 of 2015 "failure", in relation to the taking of a decision, includes a refusal to take the decision.

31. The failure on the part of the 2nd Respondent to make a decision on the Petitioner’s complaint is, therefore, a decision of the 2nd Respondent which is appealable to the Tribunal under Section 40 of the Political Parties Act.

32. The Petitioner’s dispute against the 3rd Respondent is a dispute between a political party and a member of the party. That is also a preserve of the Tribunal.

33. The Constitution and the law also creates a criminal justice system with the mandate over the complaints against the rest of the Respondents.

34. It is, therefore, the position in law that the Petitioner’s dispute is prematurely before this Court. It is the Tribunal and the other law enforcement agents who have initial mandates over the pre-election disputes.

35. In such a scenario, until and unless the Petitioner is able to demonstrate that any of the exceptions to the doctrine of exhaustion is applicable in this matter, the doctrine becomes a complete bar to the jurisdiction of this Court.

36. The Petitioner has not demonstrated how the exceptions to the doctrine of exhaustion apply in this matter. The pleadings and dispositions on record are silent on the aspect.

37. In such a scenario, the jurisdiction of the Court is improperly invoked and this Court must decline to entertain the matter.

38. Having said so, the following final orders do hereby issue: -a.This Court lacks jurisdiction to deal with the dispute in this matter on account of the doctrine of exhaustion.b.The Petition and the Notice of Motion dated 9th May, 2022 are hereby struck out.c.The Court file is hereby marked as closed.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF MAY, 2022. A. C. MRIMAJUDGE