[2021] KEHC 8313 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

JUDICIAL REVIEW NO 7 OF 2017

BETWEEN

1. PAULINE WANJIKU KIGERA

2. EMILY CHEPKEMOI..................EX PARTE APPLICANTS

AND

1. COUNTY ASSEMBLY OF SAMBURU

2. SPEAKER, COUNTY ASSEMBLY OF SAMBURU

3. CLERK, COUNTY ASSEMBLY OF SAMBURU

4. JENIFER LETUYA

5. STAFANIA LANGASUNYA

6. INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC)...........RESPONDENTS

J U D G M E N T

1. The Ex Parte Applicants herein, PAULINE WANJIKU KIGERA and EMILY CHEPKEMOI, sought leave by ex parte chambers dated 26/09/2017 to apply for judicial review to seek –

a. An order of certiorari directed at the 1st, 2nd and 3rd Respondents to “quash the decision taken to swear in the 4th and 5th Respondents as nominated members of the 1st Respondent….”

b. An order of prohibition directed at the 4th and 5th Respondents from continuing to act as members of the County Assembly of Samburu.

c. An order of mandamus directed at the 1st, 2nd and 3rd Respondents compelling them to undertake the “public duty owed in law and in respect of which the Ex Parte Applicants have a legally enforceable right and legitimate expectation and swear them in as duly nominated members of the County Assembly of Samburu.”

2. The court (Kasango, J) directed that the application for leave be served and heard inter partes. The 1st, 2nd, 3rd and 6th Respondents filed notices of preliminary objection upon the ground that what the Ex Parte Applicants had brought before the court was actually an election dispute disguised as a judicial review matter which the court should not entertain.

3. Before the preliminary objections were canvassed the Ex Parte Applicants withdrew the proceedings as against the 4th and 5th Respondents by notice of withdrawal of suit dated 11th and filed on 14th December 2017.

4. In a ruling dated and delivered on 27/02/2018 the court (Kasango, J) held that as the Ex Parte Applicants had withdrawn the suit as against the 4th and 5th Respondents, they were not seeking to unseat those two respondents from their nominated seats in the Samburu County Assembly; that the Ex Parte Applicants were only seeking a finding by the court that the decision of the 2nd and 3rd Respondents (refusing to swear them in) was wrong; and that therefore the Ex Parte Applicants could legitimately seek an order of mandamus to compel them to do so. The court therefore granted leave in that respect. The court however refused leave to seek certiorari and prohibition.

5. A little background is necessary. In the course of the General Elections of 2017, the 4th and 5th Respondents were gazetted by the 6th Respondent (IEBC) as nominees of the Democratic Congress Party to be members of the County Assembly of Samburu. They were sworn in and they took their seats. The 6th Respondent subsequently gazetted the Ex Parte Applicants as the nominees of the same Democratic Congress Party, and deleted the 4th and 5th Respondents as the nominees of that party. The 1st, 2nd and 3rd Respondents declined to swear in the Ex Parte Applicants because the 4th and 5th Respondents had already been sworn in and taken their place in the Samburu County Assembly.

6. In this state of affairs there was obviously an election dispute between the Ex Parte Applicants, the 4th and 5th Respondents, as well as the 6th Respondent (IEBC). The Ex Parte Applicants did not file an election petition under the relevant law as they should have done. Instead they brought the present proceedings. Similarly the 4th and 5th Respondents did not file an election petition. They too instituted judicial review proceedings to quash the 6th Respondent’s (IEBC) gazette notice naming the Ex Parte Applicants as the nominees of the party and deleting the 4th and 5th Respondents’ names. This was vide Nanyuki HC Judicial Reviews Nos 6and5 of 2017 respectively. In judgments delivered respectively on 1st and 27th February 2018 (Kasango, J), both cases were dismissed upon the ground that what was before the court were actually election disputes that should be resolved by way of election petitions as provided for by the Constitution of Kenya, 2010 and statute, and not by way of judicial review.

7. That is exactly the same situation that the Ex Parte Applicants must find themselves in. What is good for the goose is certainly good for the gander! It cannot be any different for them. It bears to repeat that what there is here is a fully fledged election dispute between the Ex Parte Applicants, the 4th and 5th Respondents, as well as the 6th Respondent (IEBC). That election dispute cannot be resolved by this court in judicial review. The scenario does not change merely because the Ex Parte Applicants chose to withdraw the present proceedings as against the 4th and 5th Respondents. The order of mandamus they seek in the present proceedings, if granted, would directly affect and prejudice the 4th and 5th Respondents. An appropriate election petition under the relevant law should have been filed by the four (4) nominees; none was filed. A short-cut through judicial review proceedings is not appropriate at all. This court does not have jurisdiction to resolve the clearly identifiable election dispute through judicial review.

8. There is yet another practical problem. As already seen, the 4th and 5th Respondents are already occupying the offices that the Ex Parte Applicants seek to be sworn into. The 4th and 5th Respondents were themselves gazetted and sworn into those offices before the Ex Parte Applicants were gazetted by the 6th Respondent (IEBC). If this court were to direct that the Ex Parte Applicants be sworn in, it means that, either the 4th and 5th Respondents are thrown out of the county assembly, yet the present proceedings were withdrawn as against them, or there would be 4 occupants of offices where there ought to be only two! The Democratic Congress Party would in that event have 4 nominees instead of 2; and the legal establishment of the members of the Samburu County Assembly would thereby no doubt be exceeded by two. This court will not countenance such absurdities.

9. In the circumstances, and having considered the able submissions of the learned counsels appearing, I must decline the notice of motion dated 28th February 2018. It is hereby dismissed. It is so ordered.

10. There were many other issues addressed by the learned counsels that I did not, respectfully, consider germane to the main issues, and I thus found no need to adjudicate on them.

11. As for costs, I invite the parties to address the court on the issue.

DATED AND SIGNED AT NANYUKI THIS 1ST DAY OF MARCH 2021

H P G WAWERU

JUDGE

DELIVERED AT NANYUKI THIS 18TH DAY OF MARCH 2021