[2013] KEHC 3901 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Miscellaneous Civil Application 92 of 2013

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IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF AN APPLICATION BY MFIDA MOHAMED FOR LEAVE TO APPPLY FOR

ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF THE ELECTIONS ACT (ACT NO 24 OF 2011)

AND

IN THE MATTER OF THE CONSTITUION OF KENYA (2010)

BETWEEN

THE REPUBLIC........................................................................................................................................APPLICANT

AND

THE COUNTY RETURNING OFFICER, KILIFI

THE SECRETARY, THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

THE INDEPENDENT ELECTORAL AND ELECTORAL AND BOUNDARIES COMMISSION....RESPONDENTS

AND

CHENJE MWACHIRO

CLYDE KIJANA BAYA

DAVID NOTI KOMBE

DZORO MORRIS MWACHONDO

KATANA JOSEPH KAZUNGU

KEAH PHILIP BARAKA

KUMBATHA NAOMI CIDI

MAJALI LAWRENCE KAHINDI

NOAH KATANA NGALA

STEWART MADZAYO..........................................................................................................INTERESTED PARTIES

EX PARTE: MFIDA MOHAMED

RULING

1. By a Chamber Summons dated 13th March 2013, filed herein on the same date, the applicant herein, Mfida Mohamed, sought the following orders:

1. That this Honourable Court be pleased to certify this matter as ‘Urgent’ and that service of this application on the Respondents/Interested Parties be dispensed with in the first instance;

2. That this Honourable court be pleased to grant leave to the Ex-parte applicant herein to apply for Orders of Certiorari to remove into this Honourable Court and to quash the decision(s) made by the 1st Respondent herein whereby the said 1st Respondent did purport to:

i. Accept and/or receive for counting and tallying several un-declared Ballot boxes, inter alia from Kwa chief Polling Station within Kilifi south constituency.

ii. Proceed to determine and declare the results of the election of Kilifi County Senator while including the ballot paper originating from the aforesaid several un-declared ballot boxes brought in from arts un-known.

iii. Decline to accept and/or receive for counting and several other declared Ballot boxes, from polling stations within Kilifi South Constituency which had been segregated at the onset of counting and tallying for reasons not adduced to the Ex-parte applicant despite vociferous inquiries addressed to the 1st Respondent herein;

iv. Accept and/or receive for counting and tallying, in the absence of all of the Interested parties and/or their agents several declared Ballot boxes from extra ‘voting stations’ irregularly set up. Inter alia, within Kwa chief School Polling station;

v. Proceed to determine and declare the results of the election of Kilifi County senator while including the ballot papers originating from the several un-declared Ballot Boxes from extra ‘voting stations irregularly set up, inter alia, within Kwa Chief polling station and excluding ballot papers in several ballot Boxes irregularly left out from the counting process.

vi. Allow and/or authorize the setting up of several extra ‘voting stations’ within Kwa Chief Polling Station;

vii. Authorize voting to proceed within these several extra ‘voting stations’ using un-declared Ballot Boxes despite the absence of the polling agsnts of all the aspirants;

viii. Accept and/or receive for counting and tallying the contents of the aforesaid un-declared Ballot Boxes from the said several extra ‘voting stations’ inter alia at Kwa Chief Polling Station; And

ix. Proceed to determine and declare the results of the election of Kilifi County Senator while including the ballot papers originating from the aforesaid un-declared ballot boxes from the several extra “voting stations’ inter alia at Kwa Chief polling station;

x. Locking out several voters on allegations that their names could not be found in the digital ‘voters’ Register and/or the physical copy thereof and keeping voters for long periods on a queue setup specifically to deal with these alleged technicalities.

xi. Locking out several voters on allegations that voting was proceeding alphabetically and that one could not vote until one’s letter was reached; And

xii. Proceed to gazette the outcome of the election Kilifi county senator despite being aware of numerous irregularities in the election;

Without the 1st Respondent hearing the Ex-parte applicant and/or any of the Interested Parties on the question of the validity and/or propriety or otherwise of inclusion of the aforementioned un-declared ballot boxes in the final result or hearing the Ex-parte applicant and or any of the Interested parties on the question of the validity and/or propriety or otherwise of exclusion of the votes aforementioned segregated Ballot Boxes in the final result or without the 1st Respondent giving the Ex-parte Applicant any or any valid reasons for the 1st Respondent s’ aforesaid decisions and without giving any or any proper reasons for why the Gazettement should proceed in the face of these irregularities.

3. That this Honourable Court be pleased to grant leave to the Ex-parte applicant herein to apply for an Order of Prohibition to be directed to the Respondents to prohibit them from determining, declaring announcing, publishing and/or gazetting the election results, whether provisional or final, of the election of Senator of Kilifi County as required by Section 39 of th Elections Act (2011) until hearing inter partes and determination of the main motion to be filed herein;

4. That this Honourable court be pleased to grant leave to the Ex-parte applicant herein to apply for an Order of Mandamus to be directed to the RESPONDENTS to compel them to:

a. Formally postpone election of Kilifi county senator as provided for under Section 73(1) of the Elections Act (2011) until hearing appropriate remedial measures and interventions are put in place to ensure a free, fair and accountable election for the aforesaid seat;

b. Secure from the 1st Respondents a full and proper account of the total number of:

i. Ballot boxes allocated to all seven (7) Constituencies within Kilifi County for election of county Senator by the 2nd and 3rd respondent.

ii. Ballot papers allocated to all seven (7) Constituencies within Kilifi county for election of county Senator by the 2nd and 3rd Respondents;

iii. Ballot papers issued to voters to enable them cast votes for election of Kilifi County Senator

iv. Votes cast in the Kilifi County for election of Senator, including those spoilt; before proceedings to declare the result for the election of the county Senator for Kilifi County.

c. In the alternative to the foregoing, to compel the Respondents to formally extend the voting period as defined in Section 2 of the Elections Act (2011) so as to allow fresh, voting, verification of Ballot boxes and the contents thereof, tallying and determination of the election results for the election of Senator for Kilifi county;

5. That grant of leave to apply for Orders of Certiorari, prohibition and Mandamus aforesaid do operate as a stay of the 1st Respondents decision to proceed to determine and declare the results for the election of Senator for Kilifi County despite having no powers so to do as provided under Section 39 of the Elections Act (2011) pending hearing and determination of the main motion to be filed within twenty one (21) days of grant of leave to apply for judicial review.

6. That costs of this application be granted to the Ex-parte applicant.

2. The said application was supported by a verifying affidavit sworn by the applicant on the 13th day of March 2013 and the Statement similarly filed on 13th March 2013. According to the applicant, he is a duly registered voter in Kilifi South Constituency of Kilifi County. Apart from verifying the contents of the Statements there were no other factual matters deposed to in the said verifying affidavit. In Commissioner General, Kenya Revenue Authority Through Republic vs. Silvano Anema Owaki T/A Marenga Filing Station Civil Appeal No. 45 of 2000, the Court of Appeal expressed itself as follows:

“We are certain that the issue of the procedure used does not arise inasmuch as the applicant has not ruled out the possibility of the bulk of the products containing the chemical used only in the products meant for export. That much is clear from some of the matters in the Statement accompanying the application for leave, which the Judge in his ruling, despite the statements purportedly of facts being worthless, appear to put a lot of faith in. The learned Judge decided the application for judicial review on the basis of inadmissible matters. We would observe that it is the verifying affidavit not the Statement to be verified, which is of evidential value in an application for judicial review. That appears to be the meaning of rule 1(2) of Order LIII. This position is confirmed by the following passage from the Supreme Court Practice 1976 Vol. 1 at paragraph 53/1/7:

‘The application for leave “By a statement” – The facts relied on should be stated in the affidavit (see R v. Wandsworth JJ. ex p. Read [1942] 1 KB 281). “The statement” should contain nothing more than the name and the description of the applicant, the relief sought, and the grounds on which it is sought. It is not correct to lodge a statement of all the facts, verified by an affidavit.’

At page 283 of the report of the case of R v. Wandsworth Justices, Viscount Caldecote CJ said:

‘The Court has listened to argument on the proper procedure or remedy in the case of the exercise by an inferior court of a jurisdiction which it does not possess. It is, however, not necessary here to consider whether or not there has been a usurpation of jurisdiction, because there has been a denial of justice, and the only way in which that denial of justice can be brought to the knowledge of this court is by way of affidavit. For that reason the court is entitled, indeed, it is bound, if justice is to be done, to look at the affidavit just as it would in an ordinary case of excess of jurisdiction.’ ”

3. Therefore the verifying affidavit filed herein does not have much evidential value. That, however, is not sufficient to warrant the dismissal of the application since under Order 53 rule 4(2) of the Civil Procedure Rules the applicant is entitled to seek leave of the court to file further affidavits.

4. The grounds upon which the application was based were in summary purported irregularities in the course of conducting elections of Kilifi County Senatorial position.

5. Before the leave sought herein could be granted, the respondents on 21st March 2013 filed a notice of preliminary objections in which the following issues were raised:

a. That the instant application constitute unmitigated violation of Article 87(1) of the Constitution as read together with Section 76 & 78 of the Elections Act 2011 and Rule 3 and 8(I) of The elections (Parliamentary and county elections) Petition Rules 2013 L.N. No. 44 of 2013 to the extent that it purports to challenge the outcome of a parliamentary election by way of Judicial Review proceedings.

b. That the subject application even at leave stage has substantially been overtaken by events upon publication of Gazette Notice No. 3155 on the 13th of March, 2013 which constitute the declaration of results of various elective positions including Senator of Kilifi.

c. That the Honourable High Court substantively lacks jurisdiction to entertain proceedings challenging the outcome of a Parliamentary election instituted by way of Judicial Review.

d. That the 2nd Respondent herein, the secretary of the Independent Electoral and Boundaries commission is wrongly joined in this suit.

e. That the instant application is gravely incompetent, fatally defective and an abuse of this Honourable court’s process and only lies for dismissal.

6. In prosecuting the said objections, the respondent filed submissions in which it was contended that Article 87(1) of the Constitution enjoins Parliament to enact legislation to establish mechanisms for timely settling of electoral disputes and pursuant to the said provision Parliament enacted the Elections Act, 2012 which provides for election dispute resolution. Under the said provisions as well as the Rules made under the said Act, it is submitted that an application challenging the outcome of a senatorial election including that of Kilifi County, can only be made in accordance with the provisions of the Elections Act and the Rules made thereunder which dictate that such an application be made by way of Petition. It is therefore submitted that the attempt by the Applicant herein to institute the instant proceedings by way of judicial review is deliberate and only intended to circumvent the rigorous rules set out in the constitutionally underpinned Electoral laws.

7. It is the respondent’s position based on Speaker of National Assembly vs. Karume [2008] 1 KLR 425 that where the Constitution or statute provides a specific procedure for settlement of a dispute that procedure must be followed. In this case it is submitted that the jurisdiction to hear and determine election petition is a special jurisdiction that is conferred by the Constitution itself and the manner in which it is to be exercised is ordained by the Constitution when it donates power to Parliament to enact the requisite laws and regulations for its exercise. It is therefore submitted that as the instant application violates the Constitutional and statutory provisions this court lacks the jurisdiction to entertain the application.

8. According to the respondent, since section 75(1) of the Elections Act requires that a question as to the validity of a county election be determined by a High Court within the county or nearest county, the nearest competent jurisdiction being Mombasa Law Courts, this court also lacks territorial jurisdiction as well.

9. According to the respondent, since voting in the subject county has closed and the results declared, published and gazette to entertain this application will be an academic exercise. It is further submitted that the secretary of the Independent Electoral and Boundaries Commission ought not to have been joined.

10. It is therefore prayed that this application be dismissed with costs.

11. Although an opportunity was afforded to the parties to file their submissions the applicant failed to file his submissions in opposition to the objection. On 22nd April 2013, Korir, J directed the applicant to file and serve submissions on the respondent before 26th April 2013 when the matter was due for directions before me. Came that date and there were no submissions filed and served as directed. Neither was the applicant represented when the matter came before me. Rule 4 of the Elections (Parliamentary and County Election) Petitions Rules, 2013provides:

(1) The overriding objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.

(2) The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in these Rules, seek to give effect to the overriding objective specified in sub-rule (1).

(3) A party to an election petition or an advocate for the party shall have an obligation to assist the court to further the overriding objective and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.

12. Although this application was brought as a judicial review application, it is not lost to the Court that in substance the case arose from the process of an election hence the above provision is applicable. Therefore as the applicant had failed to comply with the aforesaid directions I gave a date for the ruling.

13. On the issue of territorial jurisdiction, section 75(1) of the Elections Act provides:

A question as to validity of a county election shall be determined by High Court within the county or nearest to the county.

14. In my view, what the foregoing provision provides for is the place of determination of the petition rather than the place of filing. Accordingly, it would be reading too much into that provision to hold that an election petition must be filed in the county in which the petition arises. As was held in East African Railways Corp. vs. Anthony Sefu Dar-Es-Salaam HCCA No. 19 of 1971 [1973] EA 327, no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect.

15. With respect to the procedure adopted it was held in Ferdinand Ndungu Waititu -vs- The IEBC and 8 Others Election Petition No. 1 of 2013as follows:

“The law, however, contains other provisions with regard to the filing and hearing of election petitions. Consequently, even after complying with the time frame with regard to filing a petition after gazettement of election results, a party seeking to file a petition to challenge election results must comply with the requirements of the Elections Act and the Rules made thereunder, for they provide a specific procedure for the presentation, hearing and determination of election petitions. The principle that where the Constitution or Parliament provide a specific procedure for settlement of a dispute, that provision or procedure must be followed, is now firmly established in this jurisdiction. See, for instance, the decision of the court inSpeaker of the National Assembly- Karume (2008) 1KLR EP 425andKones-v- Republic & Another ex parte Kimani Wa Nyoike and 4 Others Civil Appeal No. 94 of 2005…This Petition, like all petitions challenging election results, must therefore comply with the rules and procedures set out in the Elections Act and the Elections Rules. The Elections Rules applicable at the hearing of this matter are contained in Legal Notice No 44 of 2013. (These Rules have since been amended by Legal Notice No 54 of 2013). They provide the specific requirements, mechanisms and time frame for the filing, hearing and determination of elections petitions. The Rules also contemplate that several steps must be taken prior to the actual hearing of the petition. For instance, the Rules require, among other things, that the Chief Justices gazettes, by name, the Judge or Magistrate who has authority to hear an election petition. They also provide the manner in which interlocutory applications arising in election petitions are to be dealt with. Under Rule 17, such applications are to be dealt with during the pre-trial conference pertaining to a specific petition.”

16. In Suleiman Said Shahbal vs. The Independent Electoral And Boundaries Commission of Kenya and Others Nairobi High Court Constitutional Petition No. 162 of 2013, Mumbi, Jexpressed herself as follows:

Counsel for the petitioner maintains that this is a petition for vindication of the constitutional rights of the petitioner, but it is clear that what is before me is essentially a petition the ultimate goal of which is to nullify the election of the 4th respondent as Governor of Mombasa County. The only order that the petitioner seeks that can be said to be connected with violation of constitutional rights strictu sensuis prayer (f) which seeks compensation under Article 23(e) of the Constitution. In my view therefore, two issues arise for consideration in determining the preliminary objections raised by the respondents: i. Is there a procedure provided by law for lodging of election petitions? ii. If there is, can such procedure be circumvented by way of a petition alleging violation of constitutional rights? …In considering this issue, I am alive to the fact that the Constitution has provided within its Articles not only for protection of fundamental rights, but also for the manner in which various aspects of social and political relations, and the disputes arising therefrom, are to be resolved…… Article 87 provides for the manner in which electoral disputes are to be resolved…..Despite Counsel for the petitioner maintaining strenuously that this is a Petition alleging violation of fundamental rights, what we have before this court is a Petition challenging the election of the County Governor of Mombasa. It has been filed as a constitutional petition alleging violation of the petitioner’s rights under the Bill of Rights, rather than as an election petition that complies with all the provisions of the Constitution, the Elections Act and the Elections Rules pertaining to the filing, hearing and determination of election petitions………..I believe that while the law on elections may have changed in keeping with the new constitutional dispensation, the logic of the law has not. There were, and continue to be, cogent reasons for insisting that where there is a specific procedure or remedy provided by law, that procedure must be followed. To hold otherwise would lead to chaos in the administration of justice, for parties would be at liberty to allege violation of constitutional rights even where no such violations exist, and pick and choose which laws and rules to follow and which to disregard. There is great public interest in the expeditious resolution of election disputes, and the Elections Act and the Elections Rules are intended to achieve this. Perhaps, as the 1st respondent submitted, there is an interface between violation of constitutional rights and acts which may form grounds for annulling the results of an election. However, the framers of the Constitution and the people of Kenya, who overwhelmingly voted for the Constitution at the referendum held on August 4th 2010, thought it best that disputes relating to elections should be resolved as provided under Article 87, through legislation enacted by Parliament. …..Consequently, for a party to be properly before the court while challenging the results of elections under the new constitutional dispensation and the resultant statutory regime, he or she must abide by the provisions of the Constitution, the Elections Act and the Elections Rules as contained in the Elections (Parliamentary and County Elections) Petition Rules 2013 contained in Legal Notice No 54 of 2013 which constitute the constitutionally underpinned code for handling election disputes. A party cannot disregard the clear provisions of the Constitution and legislation enacted pursuant to such constitutional provisions and expect relief from the court by alleging violation of constitutional rights…..I would agree with the reasoning in the decision of the Supreme Court of India inN P Ponnuswami vs. Returning Officer of Namakkal Constituency and Others (supra)relied on by the 4th respondent, where the Court observed as follows:

"The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded) and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.

The Constitution and the Elections Act, as well as the Rules made thereunder, are very clear with regard to how, before which forum, and at what stage, election results can be challenged. It is not by way of a petition alleging violation of constitutional rights but by way of an election petition that complies with all the provisions of the law governing election petitions. For the above reasons, this petition is hereby struck out with costs to the respondents.

17. On my part I associate myself with the findings of my learned sister Hon. Lady Justice Mumbi Ngugi in the above matter. A party ought not to trans-mutate an election petition into a judicial review with a view to avoiding the procedures provided under the legal regime dealing with election petitions for the convenience of the party. Rule 5 of the aforesaid rules provide:

(1) For the purpose of furthering the overriding objective specified in rule 4, the court and all the parties before it shall conduct the proceedings for the purpose of attaining the following aims—

(a) the just determination of the proceedings; and

(b) the efficient and expeditious disposal of the petition and in any case not beyond the timelines provided in the Constitution and the Act with respect to election petitions.

(2) The court may, where a party has breached any requirement of these Rules, issue orders, and impose penalties, as the court may consider just and fit including an order for payment of costs.

18. It follows that by bringing these proceedings which in effect challenge the process of an election couched as judicial review, the applicant fell foul of the procedural requirements which are designed for the expeditious and orderly conduct of disputes arising from elections. As was held in Esso Petroleum Co. Ltd vs. Southport Corpn. [1956] AC at 241, if reliance upon the rules of procedure is to be treated “as pedantry or mere formalism it cannot be seen what part they have to play in our trial system”. The rules of procedure, it has been held, carry into effect two objectives; the first to translate into practice the rules of Natural Justice, so that there are fair trial; and second, procedural arrangements whereby steps of a trial are carried out in good order and within a reasonable time. In other words rules of procedure are aimed at safeguarding the rules of natural justice and equality of hearing. It was with this in mind that the Court of Appeal in Mohammed Sheikh Abubakar vs. Zacharius Mweri Baya Civil Application No. Nai. 184 Of 2005 held that it would make no sense to have express rules of procedure, which are not enforced and enforced with consistency.

19. In the result I uphold the preliminary objection raised herein and strike out these judicial review proceedings with costs to the Respondent.

Dated at Nairobi this day 3rd of May 2013

G V ODUNGA

JUDGE

Delivered in the presence of Mrs Maina for Mr Kithi for the applicant and Miss Waweru for Mr Odhiambo for the Respondent:

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