[2022] KEHC 9843 (KLR)

Republic v Chebukati & 2 others; Wanjigi (Exparte) (Miscellaneous Application E083 of 2022) [2022] KEHC 9843 (KLR) (Judicial Review) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9843 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E083 of 2022

J Ngaah, J

July 1, 2022

Between

Republic

Applicant

and

Wafula Chebukati

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Independent Electoral & Boundaries Commission Dispute Resolution Committee

3rd Respondent

and

Jimi Richard Wanjigi

Exparte

Judgment

1. The applicant in this application was nominated by his political party, Safina, as its flagbearer and contestant for the presidency in the forthcoming August 2022 general elections.

2. On 6 June 2022 he presented his nomination papers to the chairman of the Independent Electoral and Boundaries Commission (IEBC), who is the 1st respondent in these proceedings, for registration as a presidential candidate. The 1st respondent rejected the applicant’s bid on the grounds that the applicant did not have enough supporters’ signatures in the counties of Nairobi and Siaya. The applicant was also rejected because his running mate did not have a nomination certificate and also because the applicant himself did not have a university degree certificate.

3. Aggrieved by the 1st respondent’s decision, the applicant lodged a complaint before the IEBC Dispute Resolution Committee, the 3rd respondent in these proceedings. Upon considering the decision, the 3rd respondent dismissed it. In dismissing the applicant’s application, the 3rd respondent upheld the 1st respondent’s decision and held, inter alia, that:(a)the applicant did not comply with the requisites for registration to vie for the position of president in the forthcoming general elections;(b)the applicant did not have sufficient supporters under the law;(c)the applicant did not submit a degree as is required under section 22 (2) of the Elections Act as read with regulation 47 (1) of the Elections (General) Regulations, 2012. (d)the degree envisaged under section 22 (2) of the Elections Act as read with Regulation 47 (1) of the Elections (General) Regulations, 2012 connotes a physical document.(e)that the applicant did not submit the nomination certificate in respect of his running mate to the returning officer.

4. It is this decision by the 3rd respondent that is now the subject of these proceedings. The application has been initiated by way of a motion dated 29 June 2022 filed under order 53 Rule 3 and 4 of the Civil Procedure Rules, Section 1(A), (B) and 3A of the Civil Procedure Act. In this motion he seeks the orders of certiorari and mandamus.

5. He seeks the quashing order to quash the 1st respondent’s decision rejecting the applicant’s application to be registered as a presidential candidate in the forthcoming general elections. He also seeks the same order to quash the 3rd respondent’s decision dismissing his application to challenge the 1st respondent’s decision.

6. As far as the order of mandamus is concerned, he wants the 1st respondent to be compelled to Gazette him as a presidential candidate in the elections and to that end, he wants his name included in the ballot papers for presidential elections.

7The application is supported by a statutory statement dated 24 June 2022 verified by the applicant’s own affidavit sworn on even date.

8. The application has been opposed by the respondents of whom the first two have filed a replying affidavit and preliminary objection to that effect. Initially did not get to see the response by the 3rd respondent with the help of my court assistant I was able to retrieve the 3rd respondent’s grounds of objection dated 29 June 2022 from the judiciary’s case tracking system. Even then I had I noted that Mr Ndaiga, the 3rd respondent’s learned counsel, associated himself with the position taken by the learned counsel for the 1st and 2nd respondents in his submissions opposing the motion.

9. I must state at the outset that the decision on the table and which is this honourable court is concerned about is the 3rd respondent’s decision dated 17th June 2022.

10. The court has little interest in the decision of the 1st respondent in rejecting the applicant’s bid to register as a candidate for the simple reason that the decision was the subject of the dispute before the 3rd respondent and it is the latest determination of that dispute that is now questioned in the present application. This should dispose of the first prayer in the motion according to which the applicant purportedly targeted the 1st respondent’s decision.

11. As far as the rest of the prayers are concerned, I must start by saying the obvious: that the entry point for a judicial review court in disturbing a decision made by quasi-judicial body such as the 3rd respondent is if the impugned decision is tainted by any, some, or all of the grounds of judicial review. These traditional grounds are illegality, irrationality, and procedural impropriety. Proportionality as a ground for judicial review is a latter development but it has since been embraced as one of those grounds upon which an aggrieved party may seek to impeach a decision by which he is aggrieved.

12. These grounds of judicial review have been aptly explained in the of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:"My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

13. Ordinarily, these grounds would be stated in a statutory statement. I note the grounds of illegality and irrationality have been expressed in the applicant’s statutory statement as the basis of his application but they were not as pronounced in the submissions by the applicant.

14. According to the applicant the respondent’s decision was illegal because it misinterpreted section 22(2) of the Elections Act, No. 24 of 2011. This particular provision would be better understood in the context of the entire section 22; it reads as follows:22. Qualifications for nomination of candidates(1)A person may be nominated as a candidate for an election under this Act only if that person—(a)is qualified to be elected to that office under the Constitution and this Act; and (b) holds––(i)in the case of a Member of Parliament, a degree from a university recognized in Kenya; or (ii) in the case of member of a county assembly, a degree from a university recognized in Kenya.(1A)Notwithstanding subsection (1), this section shall come into force and shall apply to qualifications for candidates in the general elections to be held after the 2017 general elections.(1B)The provisions of this section apply to qualifications to nomination for a party list member under section 34. (2)Notwithstanding subsection (1)(b), a person may be nominated as a candidate for election as President, Deputy President, county Governor or deputy county Governor only if the person is a holder of a degree from a university recognised in Kenya. (Emphasis added).

15. As far as I understood the applicant’s learned counsel, the applicant complied with the educational requirements for nomination as a presidential candidate as prescribed under section 22(2) of the Elections Act. He conceded though the applicant had not graduated and, as matter of fact he was due to graduate in November 2022.

16. It was the learned counsel’s submission that the physical document comprising the degree certificate was not necessary as long as a candidate can demonstrate that he is eligible to be conferred with a degree. In the applicant’s case, he had presented the relevant documents including course transcripts and a letter from Daystar University where he said to have studied a degree in Bachelor of Arts in International Relations and Security Studies. Over and above these documents, the applicant had even enrolled for a master’s degree from the same university.

17. Counsel relied on this Honourable Court’s decisions in Janet Ndago Mbete versus IEBC & Hassan Joho and Mable Muruli v Independent Electoral & Boundaries Commission (2013) eKLR where it had been held that a candidate need not present a hard copy certificate to satisfy the requirements in section 22 (2) of the Act and therefore it was misapprehension of the law for the 3rd respondent to demand, as a requirement for the candidacy, the presentation of such a certificate.

18. In its impugned decision, the 3rd respondent said of this requirement as follows:142. One of the grounds for rejecting the complainant's registration was lack of a degree certificate.143. The complainant submitted transcripts instead of a degree certificate.144. In submitting that the complainant met the minimum education requirements by way of transcripts, the complainant sought to rely on the case of Janet Ndago Mbete versus IEBC & Hassan Joho.145. Counsel for the complainant submitted that in the foregoing case the court discussed what constitutes a degree and urged the committee to adopt the same holding therein.146. Further, the complainant cited the case of Mable Muruli v Independent Electoral & Boundaries Commission (2013) eKLR wherein the issue of what constitutes a degree was equally discussed.147. We have taken judicial notice of the High Court decisions above.148. We note that the subject decisions were delivered in 2013, after which there have been numerous amendments to the Elections Act and the Regulations thereunder.149. Following the above High Court decisions, and for uttermost clarity, Regulation 47(1) of the Elections (General) Regulations, 2012, vide LN NO. 72/17 was amended thereby making it explicit that a person seeking nomination would be required to submit to the commission certified copies of certificates of the educational qualification.150. In light of the aforesaid amendment to Regulation 47(1) of the General (Regulations), 2012, it is our considered view that what is envisaged under section 22 of the Elections Act is a physical degree certificate.151. We find that the provisions of regulation 47(1) as amended and reproduced above are not idle provisions and serve a purpose. And in interpreting the said provisions which follow a distinct legislative path flowing from the Constitution itself at Article 82(1)(b) which commands Parliament to enact legislation specifically for nomination of candidates and under the said Article.

19. The 3rd respondent proceeded to hold that Regulation 47(1) must be in tandem with the Constitution and proceeded to cite the decision in Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 Others (2014) eKLR where the Supreme Court held that the Elections Act, and the Regulations thereunder, are normative derivatives of the principles embodied in Articles 81 and 86 of the Constitution, and that in interpreting them, a court of law cannot disengage from the Constitution.

20. The 3rd respondent proceeded to make an analogy between the provisions of section 22(2) of the Elections Act and the Kenya School of Law Act which makes a distinction between ‘holding a degree’ and being ‘eligible for conferment of a degree’.

21. The 3rd respondent concluded by saying that there is a clear distinction between holding a degree which can only be a physical document and being eligible for conferment of a degree which means having completed the required course but not yet conferred with one. It was its position which was taken up in in these proceedings that if the drafters of the Elections Act indented a holder of a degree to include someone who is eligible for conferment of a degree nothing could be easier than expressly stating so as is the case with the Kenya School of Law Act. So, while the applicant was eligible for conferment for degree he simply did not have one.

22. It is apparent from the decision of the 3rd respondent, that it considered section 22 (2) of the Elections Act and Regulation 47(1) of the Elections (General) Regulations and after taking into account all the decisions which the applicant submitted in support of his position and which, apparently are the same authorities the applicant has cited in support of his motion, it came to the conclusion that the applicant does not hold a degree certificate and without such a certificate, he cannot be said to have complied with the provisions of the law aforesaid.

23. Would a judicial review court fault the 3rd respondent for interpreting the law the way it did? I reckon not. I say so because a judicial review court has no jurisdiction to substitute its own opinion for that of a tribunal. It is not part of the purpose for judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question (see Lord Hailsham in Chief Constable of the North Wales Police versus Evans (1982) 1 WLR 1155 at 1160F).

24. It has also been held in R versus Entry Clearance Officer, Bombay ex p Amin (1983) 818 at 829 (B-C) per ord Fraser that judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.

25. The same point was emphasised in Chief Constable of North Wales Police versus Evans (supra) where Lord Brightman said at page 1173F and 1174G that:"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power…Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”Lord Hailsham stated in the same case that:The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” At page 1161A.

26. On his part Lord Roskil said in R versus Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd 1982(AC) 617 at 633C that:

27. The court must not cross that boundary between administration whether good or bad which is lawful and what is unlawful performance of a statutory duty.

28. Apart from the question of interpretation of the law, counsel for the applicant, more or less, invited this honourable court to interrogate the facts and find that applicant met the rest of the requirements including the requirement prescribed under section 23 (1) (d) of the Elections Act which is to the effect, inter alia, that a presidential candidate must be nominated by not fewer than two thousand voters from each of majority of counties.

29I note also that the 3rd respondent dealt with this question at length in its decision. In doing so, it established as follows:113. It is not in dispute that the complainant submitted insufficient supporters. The complainant acknowledges at paragraph 12 and 13 of the statement of claim and paragraph 7, 8 and 9 of his supporting affidavit that submission of insufficient supporters was one of the reasons for rejection of his registration.114. The complainant confirms that the deficiency at paragraph 12 of the statement of claim and paragraph 9 of his supporting affidavit by stating that he submitted a list of extra supporters from Siaya. If indeed he had the required number of supporters, the issue of submitting extra supporters could not have arisen; he could not have brought an extra list of supporters if at all he was in compliance.

30. Again, I would say here that a judicial review court should not be concerned about interrogating the facts upon which the impugned decision was made and purport to evaluate them afresh. For the same reason that a judicial review court cannot substitute its decision for that of a tribunal on matters of law, it cannot do so also on matters of fact. On this point I would adopt the reasoning of the Court of Appeal in OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others [2017] eKLR Civil Appeal No. 28 of 2016:"Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question. See Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited (2008) Misc. Civil Appl. No. 374 of 2006. In judicial review proceedings, the mere fact that the public body?s decision was based on insufficient evidence, or on misapplication of evidence, cannot be a ground granting judicial review remedies. Whether that decision was right or not, the affected party ought to challenge it on appeal. In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review.

31. Viewed at from the foregoing legal perspective, I am inclined to come to the conclusion that this Honourable Court would not be concerned about whether the 3rd respondent was correct in coming to the conclusion that the applicant had not satisfied the statutory and regulatory requirements to contest as a presidential candidate in the forthcoming general elections but whether, in coming to that decision, the 3rd respondent confined itself within four corners of the law from which it derives its mandate and, in doing so, whether it gave regard to the due process.

32. With due respect the learned counsel for the applicant, I struggled together from their submissions how the 3rd respondent’s decision had been vitiated by any judicial review grounds. I stand corrected if I missed it but I did not hear them substantiate the grounds of illegality and irrationality spelt out in the statutory statement.

33. The authorities which I have referred to demonstrate that it is not enough that this court could possibly arrive at conclusions both of law and fact that may different from those reached by the 3rd respondent.

34. Regardless of how enticing the invitation to consider and evaluate the evidence afresh and consider the interpretation given to the various provision of the law, I am persuaded that that is not the correct path to follow. If I fell for this invitation, I will only succeed in supplanting or replacing the 3rd respondent’s decision with my own decision. This, for reasons I have given, a judicial review court cannot do.

35. A judicial review court does not assume appellate jurisdiction in a judicial review application. In the same breath, it cannot replace a decision under review merely because it probably would have reached a different conclusion given the same facts and the law.

36. In the ultimate I am not satisfied that a case has been made out to persuade me to exercise my discretion in favour of the applicant and grant any of the orders of judicial review. His application lacks merit and it is hereby dismissed with costs.

SIGNED, DATED AND DELIVERED ON 1ST JULY 2022Ngaah JairusJUDGE