[2017] KEHC 3546 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

PETITION NO. 320 OF 2017 (JR)

IN THE MATTER OF ARTICLES 2(1), (3), 19(1), 20(1), (3)(a), (4)(b), 22(2)(d), (3)(b), (3)(c), (3)(c), 25(c), 38(2)(a), (3)(c), 48, 55, 85, 159(1) (2), 165 and 258 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF ELECTIONS ACT, 2011 (AS AMENDED)

AND IN THE MATTER OF COUNTY ASSEMBLY, RIRUTA WARD, DAGORETTI SOUTH CONSTITUENCY, NAIROBI

BETWEEN

PAUL MUTUKU TOM..................................................................................PETITIONER/APPLICANT

AND

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...........................RESPONDENT

RULING

[1] The Petitioner/Applicant, Paul Mutuku Tom, approached the Court under Certificate of Urgency on 28 June 2017 under Rules 19, 23, 24and26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, for the following orders:

[a] Spent

[b] Spent

[c] Spent

[d] That the Court be pleased to grant an Order of Temporary Injunction prohibiting and/or restraining the Respondent either by itself, agents, servants and/or employees, from refusing to receive, accept or act upon the nomination papers and/or symbol presented by the Applicant for purposes of contesting and/or vying for the slot and/or position of Member of County Assembly, Riruta Ward, Nairobi County, in the forthcoming General Elections, pending the hearing and determination of the Petition.

[e] That such further or other orders be made as the Court may deem fit and expedient.

[2] The application was premised on the grounds set out in the Notice of Motion and the Supporting Affidavit annexed thereto. In sum, it was the contention of the Applicant that, as a registered voter entitled to participate in the forthcoming General Elections, he submitted his name to the Registrar of Political Parties with a view of being cleared to vie as an Independent Candidate for the position of Member of County Assembly (MCA), Riruta Ward in Nairobi County; and that upon being cleared by the Registrar of Political Parties, he submitted his papers to the Respondent for clearance but received no response.

[3] It was further the contention of the Applicant that after making various concerted efforts to ascertain whether the Respondent had acted on his papers, he was constrained to appeal to the Respondent's Board on 31 May 2017 by way of the letter marked PMT 2 to his Affidavit in Support of the Petition; and that Respondent, vide a letter dated 31 May 2017, wrote back to say that his submission was made after the expiry of the period for receipt of symbols, letter of intent and clearance from the Office of the Registrar of Parties. He accordingly petitioned the Court for intervention, contending that he is bound to suffer irreparable loss should he be deprived of the opportunity to vie in the forthcoming General Elections.

[4] The Respondent opposed the application and a Replying Affidavit filed to that effect, sworn by Douglas Bargorett on 12 July 2017. According to the Respondent, the Applicant is not deserving of the prayers sought for the reason that the same is defeated by the doctrine of laches. The Respondent averred that the Applicant submitted his name for nomination as an Independent Candidate outside the time stipulated vide Gazette Notice No. 2697 of 17 May 2017 and had not applied for waiver or extension of time. It was further averred that the Respondent having communicated its decision to the Applicant vide the letter dated 31 May 2017, the Applicant did not take any action until one month later when this Petition was filed; and that he is, in the premises, guilty of laches; all the more so because that period of indolence has not been explained. The Respondent further averred that it has already gazetted the names of candidates who will be participating in the General Elections; and therefore that the Court ought to dismiss the Applicant's belated application.

[5] Having given careful consideration to the application in the light of the averments made in the affidavits filed in respect thereof and the documents annexed to the said affidavits, there is no disputation that, pursuant to its mandate under Article 88 of the Constitution, the Respondent published timelines for compliance by all prospective candidates for the forthcoming August 8, 2017 General Elections. With regard to the election for Members of the County Assembly Wards, the relevant Gazette Noticeis No. 2697 of 17 March 2017. At paragraphs (g) and (i) thereof, notice was given to the following effect:

"(g) Candidates intending to participate in the general election as independent candidates shall submit their names and symbols that a person intends to use during elections for purposes of nomination of independent candidates to the Commission on or before 10 May, 2017.

...

(i) The Commission shall publish in the Gazette, the names and symbols of persons intending to contest in the election as independent candidates at least fourteen (14) days before the nomination day being on or before 13th May, 2017. "

[6] Needless to say that the nominations have since been conducted and brought to a close, in terms of the timelines set out in paragraph (k) of the aforementioned Gazette Notice; and the 10 days window for dispute resolution closed. The Applicant now seeks to have the clock wound back to the pre-nomination process; and for what reason? In his undated letter to the Respondent, marked PMT2 he stated the reason thus:

"...I was cleared by the registrar of political parties and had by symbol approved but didn't submit my name in time. I have been preparing for the nominations not knowing of this requirement to submit my name until late.

[7] Accordingly, the Respondent was within its powers to decline the Applicant's request for inclusion as a candidate as it did vide its letter dated 31 May 2017. It is also evident that whereas the Applicant annexed copies of the documents he received from the Registrar of Political Parties (Annex PMT1, PMT1(a) and PMT1(b) to the affidavit filed in support of the Petition), he did not exhibit copies of the documents he submitted to the Respondent pursuant to Section 32 and 33 of the Elections Act, 2011 to enable the Court ascertain when the submission was made.

[8] In view of the matters aforesaid, it is my careful consideration that no justification has been made by the Applicant for the orders sought; and that he is the author of his misfortune. The Court takes judicial notice that the list of candidates for the August 8, 2017 General Elections has already been published and the printing of ballot papers is ongoing. I would accordingly fully endorse the sentiments of Majanja J in Francis GitauParsimei& 2 Others vs. The National Alliance Party & 4 Others, Petition No. 356 and 359 of 2012that:

"...it must be clear that political rights are exercised through a political process involving many actors; the citizens and institutions. This is the process provided for under the provisions of Chapter Seven of the Constitution titled, "Representation of the People." These provisions are operationalized by the Independent Electoral and Boundaries Commission Act, 2011, the Elections Act, 2011 and the Political Parties Act, 2011. Individual political rights and the electoral process cannot be divorced from one another but must go hand in hand. It is therefore proper that the political rights are realized within a structured process that takes into account the larger interests of the society and the need for a free and fair election which is enhanced by a self-contained dispute resolution mechanism underpinned by the Constitution itself and statutes enacted to give effect to its provisions."

[9]Having failed to comply with or submit to the structured process set out for the nomination of independent candidates in readiness for the August 8, 2017 General Elections within the timelines stipulated by the Respondent, it is my considered finding that the Applicant is not deserving of the orders sought. Accordingly his Notice of Motion dated 27 June 2017 is devoid of any merits, and the same is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY 2017

OLGA SEWE

JUDGE