[2022] KEHC 12367 (KLR)

Rajput & another v Independent Electoral & Boundaries Commission & another; Principal Registrar of Persons Ministry of State for Immigration& Registration of Persons & 2 others (Interested Party) (Constitutional Petition E260 of 2022) [2022] KEHC 12367 (KLR) (Constitutional and Human Rights) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12367 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E260 of 2022

AC Mrima, J

June 20, 2022

Between

Nazlin Omar Fazaldin Rajput

1st Petitioner

Caucus for Peace & Independent Candidates of Kenya

2nd Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

Attorney General

2nd Respondent

and

Principal Registrar of Persons Ministry of State for Immigration& Registration of Persons

Interested Party

Director Criminal Investigations

Interested Party

Office of the Data Protection Commissioner

Interested Party

Ruling

Introduction 1. The Petitioners herein filed a Petition dated 31st May, 2022 challenging an array of issues on the electoral laws in Kenya.

2. The Petition was vehemently opposed by the Respondents and the 1st and 2nd Interested Parties. Their first salvo was the filing of Notices of Preliminary Objections.

3. The Independent Electoral & Boundaries Commission (hereinafter referred to as ‘the 1st Respondent’ or ‘the IEBC’ or ‘the Commission’) filed a Notice of Preliminary Objection dated 13th June, 2022 whereas the 2nd Respondent (hereinafter referred to as ‘the 2nd Respondent’ or ‘the Hon. A.G.’) and the 1st and 2nd Interested Parties (hereinafter referred to as ‘the Interested Parties’) filed a joint Notice of Preliminary Objection dated 10th June, 2022.

4. The Notices of Preliminary Objections were heard on 15th and 16th June, 2022, hence, this ruling.

5. This ruling is, therefore, a composite one on the two Notices of Preliminary Objections.

The Notices of Preliminary Objections 6. The Notice of Preliminary Objection by the IEBC was tailored as follows: -1. This Honourable Court lacks the requisite jurisdiction to take cognizance, hear and determine the Application and the Petition in view of the provisions of Article 88(4) (d) and (e) of the Constitution of Kenya, 2010 and section 74 (1) of the Elections Act which vests jurisdiction on the 1st Respondent to hear and determine pre-election disputes.2. This Honourable Court lacks the jurisdiction to entertain this petition and application since the Petitioners have filed before this court a matter that raises a pre-election dispute disguised as a human rights petition and by dint of the provisions of Article 88(4) (d) and (e), it lacks the jurisdiction to entertain a pre-election dispute.3. That this Petition is prematurely before the court and this Honourable Court lacks the jurisdiction to entertain the same as the IEBC Dispute Resolution Committee is currently hearing similar disputes as is its mandate, therefore the Petitioner is upsetting the doctrine of exhaustion.

7. The joint objection by the Hon. A.G. and the Interested Parties was styled as under: -1. That the high court lacks the requisite jurisdiction to hear and determine qualification disputes relating to elections to the office of the president arising under Article 140 of the constitution (which includes pre-election disputes) which is under the original and exclusive jurisdiction of the Supreme Court.2. That This Honourable Courts lacks the requisite jurisdiction to hear and determine the Petitioners case since she has not exhausted the IEBC Internal Dispute Mechanisms provided for under Article 88(4) of the Constitution as read together with Section 74 of the Elections Act.3. That the issues pleaded in the Notice of Motion have not crystalized and the Court is barred to hear and determine the motion under the provisions of Section 9(4) of the Fair Administrative Action Act and the motion should be dismissed in limine for non-exhaustion of alternative adequate remedies before seeking judicial intervention.

The 1st Respondent’s Case and Submissions 8. In support of its case, the 1st Respondent, through its Counsel, fronted the position that this Court lacks jurisdiction. He cited exhaustion doctrine on the basis of provision of Article 88(4) of the Constitution and Section 74(1) of the Elections Act which vest adjudication of pre-election disputes on IEBC’s Disputes Resolution Committee.

9. It was his case that the Petition is clothed as a human rights question but is essentially a pre-election dispute. He was emphatic that the Committee was the first port of call.

10. To that end, he drew support from the decision in Moses Murigi v IEBC [2016] eKLR where it was observed that Courts ought to be cautious not to open up another regime of dispute resolution.

11. Further refence was made to the Supreme Court decision in Mohammed Abdi Mohamud v Ahmed [2018] eKLR, where the Court expounded on pre-election disputes.The 2nd Respondent’s, 1st and 2nd Interested Party’s case and submissions:

12. In support of its case, Mr. Kuria counsel for the 2nd Respondent’s, 1st and 2nd Interested Party’s first adopted the position taken by the 1st Respondent.

13. In respect of its Preliminary Objection, he submitted that Petition is not ripe for this Court’s adjudication.

14. It was his case that as per the provision Section 9 of the Fair Administrative Actions Act, the timing of the Petition is unacceptable in that even where there are exceptions to the doctrine of exhaustion, the FAA Act calls for a party to seek leave in the first instance.

15. In challenging jurisdiction, it was his case that according to Rule 12(1) and (2) of the Supreme Court Presidential Rules 2013, the Petitioner’s case is the preserve of the Supreme Court since it provides for validity of nomination of presidential candidates.

16. To demonstrate this Court’s lack of jurisdiction, Counsel referred to various decisions among them, the decision in Isaack Aluochier Polo v IEBC & 19 others, Nairobi High Court Constitutional Petition No. 512 of 2012, International Centre for Policy & Conflict & 5 others v The Attorney General & 5others and the Supreme Court decision in the matter of the Principal Gender Representation in the National Assembly & The Senate.

17. On the foregoing, he stated that Article 137 of the Constitution on qualification for nomination of presidential candidate can only be interpreted by the Supreme Court.

18. In his rejoinder he submitted that the orders as prayed for in the Notice of Motion and the Petition are on qualification of a presidential candidate thus making it a pre-election dispute within the meaning of Article 140 of the Constitution and as such ought to be before the Supreme Court.

19. It was his case that the basis the Supreme Court declined Jurisdiction in Isaack Aluochier Polo v IEBC & 19 others was because there were only 27 days left to elections, as such it was in public interest to allow elections to proceed as planned. He however stated that the Court had Jurisdiction.

20. In challenging the Petitioner’s contention that the 2nd Respondent’s Preliminary Objection was improper, Mr. Kuria in his rejoinder submitted that the Attorney General was a party to the case and as such had every right to participate in every aspect of the case.

21. He reiterated that the dispute was a pre-election one and hence ought to be heard by the IEBC. He prayed that the preliminary Objection be upheld.

The Petitioners’ cases and submissions: 22. Ms. Nazlin opposed the propriety of Attorney General’s Preliminary Objection stating that it fatally defective. It was her case that it ought to have been raised by The IEBC since the Attorney General’s role under Article 156 is to defend public interest. It was her case that the instant Petition is a public interest dispute and the Attorney General’s role is minimal.

23. It was her case that the Petition is about procedure of Presidential election and how it is not in line with the constitution. She therefore was called upon the Court to urge the DCI to commence investigation.

24. She posited that the Petition was about security of information and the criminal activities committed at the behest of the IEBC.

25. She asserted that the IEBC has no jurisdiction to hear the Petition as it is not an election dispute per-se. It was her submission that it is about constitutionalism and the rule of law which can only be dealt with by Court. She pointed out that she had no confidence in the IEBC and the Committee.

26. The Petitioners claimed that the 2nd Respondent’s preliminary objection was an obstacle to Justice and violate Article 1,2,3,12, 19(2) (3), 20, 21 and 22 of the Constitution.

27. In respect to the 1st Respondent’s Preliminary Objection, she submitted that the decisions relied upon by it are in support of the Petition.

28. In reference to Complaint No. 211 of 2017, it was her case that once a case is before the High Court, IEBC’s DRC has no jurisdiction. She asserted that she has raised the issues with the IEBC but there was no response hence the decision to come to Court.

29. To further assert this Court’s jurisdiction, she submitted that the Petition challenges constitutionality of statutes and raises issues among others; discrimination, fair administrative action and fair hearing presidential election as provided variously in Article 27, 47, 50, 52, 140, 252 of the Constitution.

30. It was her case that the Petition was on qualification of presidential qualifications which was settled in Petition No. 28 of 2020 consolidated with Petition No. E549 of 2017, e077 of 2022, E037 of 2021 & E065 of 2021 that they must have qualification of that of a Member of Parliament.

31. While seeking to distinguish the Supreme Court’s Advisory Opinion No 2 of 2012 in relied upon by the Respondent to oust this Court’s jurisdiction, she stated that in the issue was the election of a president-elect, which is not the position of the Petition.

32. She further distinguished Petition No. 512 of 2012 stating that it does not apply to the circumstances of the instant dispute. she stated that the case was about eligibility of some presidential candidates on the basis of criminal charges they faced before the International Criminal Court.

33. In respect to the decision in Isaack Aluochier Polo -vs- IEBC & 19 Others, she submitted that Supreme Court declined jurisdiction before a presidential election took place.

34. The Petitioners prayed that the objections be dismissed.

Issues for Determination 35. From the reading of the material before Court, the following issues arise for discussion in respect of the objections: -(a)Whether the Supreme Court is seized of jurisdiction over the dispute.(b)Whether the Supreme Court or the High Court’s jurisdiction, as the case may be, are barred from dealing with the dispute on account of the doctrine of exhaustion.

36. The issues will be dealt with in seriatim.

Analysis and Determination (a) Whether the Supreme Court is seized of jurisdiction over the dispute: 37. The jurisdiction of the Supreme Court over disputes on Presidential elections is by now well settled.

38. The Supreme Court in Advisory Opinion No. 2 of 2012 In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, rendered its opinion on 11th December, 2012 on the matter and opined as follows: -[100]It is clear to us, in unanimity, that there are potential disputes from Presidential elections other than those expressly mentioned in Article 140 of the Constitution. A Presidential election, much like other elected-assembly elections, is not lodged in a single event; it is, in effect, a process set in a plurality of stages. Article 137 of the Constitution provides for “qualifications and disqualifications for election as President” – and this touches on the tasks of agencies such as political parties which deal with early stages of nomination; it touches also on election management by the Independent Electoral and Boundaries Commission (IEBC). Therefore, outside the framework of the events of the day of Presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties. Yet still, the dispute would still have clear bearing on the conduct of the Presidential election.

[101]Does the entire question concerning Presidential elections belong to the Supreme Court’s jurisdiction? Or is the Supreme Court’s power limited by the express language of Article 140 of the Constitution? ……..

[102]Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election – while excluding those disputes which might arise during the conduct of election.

[104]It is our unanimous opinion that the validity of the Presidential election is not for determination only after the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity.

[106]A purposive approach would take into account, firstly, the agonized history attending Kenya’s constitutional reform; secondly, the crucial importance of the electoral process in the current constitutional dispensation; and thirdly, the overwhelming case for free, fair and efficiently-conducted elections. In this context, Presidential-election disputes, in their whole range, should be impartially and expeditiously resolved by the Supreme Court as the ultimate judicial body, within practical time-lines to be read into Article 138(5); …….

39. As said, the above was an advisory opinion of the apex Court and not an interpretation of the Constitution as provided for in Article 165(3) of the Constitution.

40. Later, in 2017, a dispute was lodged before the Supreme Court on the basis of the above advisory opinion. That was in Petition No. 18 of 2017 Okiya Omtatah Okoiti v Independent Electoral and Boundaries Commission & another; Uhuru Muigai Kenyatta & 7 others (Interested Parties) [2020] eKLR. The Petitioner sought the interpretation of Article 140 as read with Articles 138 and 139 of the Constitution. In particular, the Petitioner sought a determination of the question as to what threshold must be met, in order to trigger a fresh presidential election within the meaning of Article 140 (3) of the Constitution. The Petitioner also sought a determination of the effect of the withdrawal from the 26th October fresh presidential election by the 2nd Interested Party.

41. The jurisdiction of the Supreme Court was impugned by way of three Notices of Preliminary Objections. The gravamen of the objections was that it was the High Court and not the Supreme Court which had the jurisdiction over the dispute since there was no declaration yet made by IEBC on the fresh presidential election. In other words, it was contended that the dispute was prematurely lodged before the Supreme Court as there was no formal declaration of the results of the fresh presidential election.

42. There were extensive and deep rival submissions which were made by the parties.

43. In upholding the objections and declining jurisdiction over the dispute, the Supreme Court in a decision rendered on 7th February, 2020 held as follows: -[49]We have carefully considered the reasoned positions of all parties to the Petition regarding the jurisdiction of this Court. Towards this end, and as has been the practice of this Court in disputes wherein jurisdictional questions have arisen, we have to turn back to Article 163 (3) of the Constitution. In this regard, we focus upon Article 163 (3) (a) which, provides that the Supreme Court shall have:''exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140…” (Emphasis added).Article 140 (1) on the other hand provides that:''A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.” (emphasis added).

[50]We hasten to restate the position that, the Constitution confers upon the Supreme Court, exclusive original jurisdiction, to determine disputes relating to the election of the President arising under Article 140 only. Though exclusive and original, this jurisdiction is limited to the circumstances contemplated in Article 140 (1). It is not a blanket jurisdiction that empowers the Supreme Court, to flex its judicial authority over any and all interpretational questions, touching upon the election of the President. It must be further emphasized that, Article 163 (3) of the Constitution does not oust the High Court’s original jurisdiction to interpret the Constitution under Article 165 (3) (d). The Supreme Court’s exclusive and original jurisdiction to determine the validity of a presidential election, only kicks in after the declaration of results, following a petition challenging the election; (see Aluochier and Ekuru Aukot) (Supra).

[51]Applying these principles to the Petition herein, we have no hesitation in agreeing with the Respondents’ submissions (supported by the Interested Parties) to the effect that the Petitioner has wrongly invoked this Court’s jurisdiction. If his intention is to seek the interpretation of Articles 138, 139 and 140 of the Constitution, the Petitioner cannot leapfrog the High Court and come directly to the Supreme Court. Conversely, if the intention of the Petitioner is to challenge the validity of the fresh presidential election of October 26th 2017, then his Petition has been filed in breach of Article 140 (1) of the Constitution. It is not denied that the Petition herein, was filed before the declaration of the results of the October 26th election.

[52]The Supreme Court cannot determine the validity or otherwise of a presidential election, before the same is held and the results thereof declared. It is one thing for the Court to pronounce itself on a constitutional or legal question, but it is another thing to determine the validity of an election. In other words, the Supreme Court cannot anticipate the validity of a presidential election, within the meaning of Article 140 (1) of the Constitution. As such, this Court lacks jurisdiction to hear and determine the present Petition.

44. This position had earlier on been held in the Supreme Court in Petition No. 2 of 2013 Isaac Aluoch Polo Aluochier v Independent Electoral and Boundaries Commission (IEBC) & 19 Others [2013] eKLR and in Nairobi High Court Petition No. 471 of 2017 Ekuru Aukot v Independent Electoral & Boundaries Commission & 3 others [2017] eKLR.

45. There was, therefore, a departure from the finding of the Supreme Court in the Advisory Opinion. Unlike in the said opinion, the Supreme Court had occasions and indeed dealt with the issue in a contested manner. The Court, over time, overruled its opinion on the jurisdiction of the Court. The now obtaining position is that the Supreme Court will only assume jurisdiction in a matter challenging a presidential election after the formal declaration of the results of such an election and not before.

46. Deriving from the foregoing, since there is no declaration of the results of the presidential election yet, then the objection that it is the Supreme Court which has the exclusive jurisdiction over the dispute herein fails and is for rejection.

47. The first issue is, hence, answered in negative.

(b) Whether the High Court is barred from dealing with the dispute on account of the doctrine of exhaustion: 48. It was submitted by the 1st Respondent that the jurisdiction of this Court was improperly invoked since the Petitioners did not satisfy the alternative dispute resolution mechanism provided for under Section 74 of the Elections Act as read with Article 88(4)(e) of the Constitution.

49. According to the 1st Respondent, it was the IEBC Dispute Resolution Committee which ought to, in the first instance, exercise its jurisdiction over the dispute.

50. The Petitioners were of the contrary position. To them, the IEBC Dispute Resolution Committee lacked the jurisdiction over the dispute given the nature of the constitutional issues raised in the matter which called for the High Court’s interpretation.

51. The 1st Respondent’s argument seemingly rested on the doctrine of exhaustion. As such, I will briefly look at the same.

52. 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 v Independent Electoral and Boundaries Commission (IEBC) 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 v 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.

53. 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 v Independent Electoral and Boundaries Commission (IEBC) & 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 v 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.

54. 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 v 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.

55. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited v 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 v Njenga Karume [1990-1994] EA 546 to assume jurisdiction by by-passing 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.

56. The High Court has variously reiterated the position that it is only the High Court and Courts of equal status which can interpret the Constitution. (See Royal Media Services Ltd. v Attorney General & 6 Others [2015] eKLR among others).

57. Turning back to the case at hand, this Court has carefully considered the Petition at hand.

58. The Petitioners pray for a total of 65 prayers in the Petition. The prayers are diverse and cover a large cross-sectional area of the electoral laws. Some of the prayers seek the interpretation of Article 137 of the Constitution (on the qualifications and disqualifications for election as President), the interpretation of the Constitution on whether Parliament has the power to make separate electoral laws on various elections, the constitutionality of Sections 22, 23 and 24 of the Elections Act, the constitutionality of some timelines issued by the IEBC, whether the elections to be held on 9th August, 2022 have already been marred by irregularities that will render the General election unconstitutional, the constitutionality of the fees payable by those seeking to run for various political offices, payment of Kenya Shillings Two Billion as general damages, a claim for exemplary damages, an order for investigations over the copies of the national identity cards availed by Presidential candidates, whether the requirement to avail copies of the national identity cards is constitutional among many others.

59. There is no doubt that the IEBC has the mandate to settle electoral disputes prior to the declaration of elections. The disputes include those arising from nominations, but subject to those within the province of the Political Parties Disputes Tribunal under the Political Parties Act.

60. A cursory look at the issues raised in the Petition reveal that what the Petition seeks is beyond the jurisdiction of the IEBC Dispute Resolution Committee. For instance, the Committee has no power to interpret the Constitution, to declare any law as unconstitutional, to award damages to the tune of billions, among others.

61. To that end, and going by the nature of the grievances laid out in the Petition, the IEBC Dispute Resolution Committee does not accord the Petitioners an appropriate forum which is proportionate to the interests the Petitioners wishes to advance in the matter. As such, the jurisdiction of the IEBC Dispute Resolution Committee is ousted. In other words, the IEBC Dispute Resolution Committee lacks the jurisdiction to entertain the larger part of the Petition.

62. This Court must clarify that most of the issues raised by the Petitioners can only be determined by the High Court in exercising its mandate under Article 165(3) of the Constitution. It is for that reason that the contention that the IEBC Dispute Resolution Committee has the exclusive mandate over the matters raised in the Petition is not sustainable.

63. The upshot is that the doctrine of exhaustion is not applicable in this matter and the issue is answered in the negative.

Disposition: 64. The above discussion yield that none of the objections is successful. As such, the Notice of Preliminary Objection dated 13th June, 2022 filed by the 1st Respondent and the Notice of Preliminary Objection dated 10th June, 2022 by the Hon. AG and the Interested Parties be and are hereby dismissed.

65. Costs of the objections shall be in cause.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF JUNE, 2022. A. C. MRIMAJUDGE