[2022] KEHC 10196 (KLR)

Republic v IEBC Dispute Resolution Committee & 2 others; Geoffrey Namunyu Elwak (Exparte) (Judicial Review Application E102 of 2022) [2022] KEHC 10196 (KLR) (Judicial Review) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10196 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E102 of 2022

AK Ndung'u, J

July 14, 2022

Between

Republic

Applicant

and

IEBC Dispute Resolution Committee

1st Respondent

Returning Officer Embakasi East Constituency

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

and

Geoffrey Namunyu Elwak

Exparte

Judgment

1. Geoffrey Namunyu Elwak (hereinafter, the Applicant) moved this court vide a Notice of Motion dated 29th June,2022 in which he sought orders;i.That an order of Certiorarido issue, to remove and bring into this Honourable Court for the purposes of quashing the 1st Respondent's decision in Complaint No. 187 of 2022- Geoffrey Namunyu Elwak versus Returning Officer Embakasi East Constituency delivered on 17th June, 2022. ii.Thatan order of Prohibitiondo issue, directed at the 2nd and 3rd Respondents prohibiting them or any of their agents or persons acting through them or under them or under their directives from gazetting and printing ballot papers of any other aspirants for Member of County Assembly for Upper Savannah Ward within Embakasi East Constituency for the General Elections scheduled for 9th August 2022. iii.Thatan order of Mandamusdo issue, for purposes of compelling the 2nd and 3rd Respondents to receive the nomination papers, clear, register and issue the Ex-parte Applicant with the Certificate of Registration for Member of County Assembly for Upper Savannah Ward within Embakasi East Constituency on Ukweli Party ticket in the forthcoming General Elections scheduled for 9th August 2022. iv.Thatan order of Mandamusdo issue, for purposes of compelling the 1st Respondent to produce the Dispute Resolution Committee record for scrutiny by this Honourable Court as the decision delivered on 17th June, 2022 is contrary to the hard copy received by the Ex-parte applicant.v.Thatany such other Order and/or directions of this Honourable Court as it deems fit to grant in the circumstances.vi.ThatCosts of the application be provided for.

2. The application is premised on 11 grounds as set out on the face thereof viz;i.That on 7th June, 2022, the Ex-parte applicant presented himself before the 2nd Respondent for clearance to contest for the position of Member of County Assembly for Upper Savannah Ward within Embakasi East Constituency on Ukweli Party ticket in the forthcoming General Elections.ii.That the 2nd Respondent refused to clear and accept his papers for nomination to contest for the position of Member of County Assembly for Upper Savannah Ward within Embakasi East Constituency.iii.That the 2nd Respondent refusal amounted to a failure in his obligations as the Returning Officer, Embakasi East Constituency did not give the Ex-parte applicant a justified reason for his refusal yet there was no clear communication regarding to his submission of nomination papers and his decision is therefore irrational and illegal decision.iv.That there was communication breakdown between Ex-parte applicant and the 2nd Respondent and in fact the Ex-parte applicant was not part of the WhatsApp group platform which the 2nd Respondent used while communicating to other aspirants regarding the time and process of submitting nomination papers.v.That the Ex-parte applicant never received any updates from the 2nd and 3rd Respondents neither was he informed of a scheduled meeting between the IEBC Officials and all the aspirants contesting for various positions in Embakasi East Constituency.vi.That as a result of the communication breakdown between the Ex-parte applicant and the 2nd and 3rd Respondents, the Ex-parte applicant arrived at the clearance venue late and this was occasioned by the 2nd Respondents and thus the Ex-parte applicant ought to be granted the opportunity to submit his nomination papers.vii.That the Ex-parte applicant aggrieved by the illegal conduct of the 2nd Respondent, filed a complaint dated 9th June 2022 on 10th June 2022 before the 1st Respondent whose decision was delivered on 17th June, 2022 in which the Ex-parte applicant was successful as the 2nd respondent was ordered to clear him but was surprised on 22nd June 2022 when upon receipt of the hard copy realized that his complaint had been dismissed.viii.That the decision by the 1st Respondent delivered on 17th June, 2022 was in favour of the applicant but the hard copy of the decision was contrary to what the 1st respondent had in fact delivered and this is therefore an affront to the Ex-parte Applicant’s Constitutional and political rights under Articles 38, 47 and 50 of the Constitution of Kenya, 2010. ix.That in view of the impugned decision by the 1st Respondent, the Ex-parte Applicant is apprehensive that the 2nd and 3rd Respondents may proceed to gazette and print ballot papers for aspirants for Member of National Assembly for Upper Savannah Ward within Embakasi East Constituency to his detriment and prejudice unless stopped by an order of this Honourable Court.x.That unless this application is heard and orders issued urgently, the Respondents may act on the impugned decision to the Ex-parte Applicant's detriment thereby denying him the opportunity to exercise his constitutional and political rights of contesting for the position of Member of County Assembly for Upper Savannah Ward within Embakasi East Constituency in the August General Elections.xi.That it is in the interest of justice and fairness that this application is allowed.

3. The application is further based on the statutory statement of the Applicant dated 27th June, 2022 and his verifying Affidavit of even date.

4. The gist of the application as gleaned from the material before court is that as a result of a communication breakdown between the Applicant and the 2nd Respondent and the omission by the 2nd and 3rd Respondents to avail updates and notice of a meeting between IEBC officials and all aspirants contesting for various positions in Embakasi East Constituency, the Applicant arrived at the clearance venue late. His papers were not accepted by the 2nd Respondent.

5. Aggrieved by the non-acceptance of his papers, the Applicant lodged a complaint dated 9th June,2022 before the 1st Respondent. The complaint was dismissed vide a decision dated 17th June,2022. The Applicant alleges that the decision he received in hardcopy from the 1st Respondent is different from the decision delivered on 17th June,2022.

6. The application is opposed. In a replying affidavit Douglas Kipruto Bargorett avers that the 3rd Respondent had Gazetted notices stipulating the time lines and the requirements for clearance to vie in the general elections slated for 9th August, 2022. The gazette notices are dated 20th January,2022.

7. It is urged that the 1st Respondent dismissed the Applicant’s complaint on grounds that he was in violation of Regulations 34 and 43(2)(g) of the Elections (General) Regulations (2012) as well as paragraph H of the Gazette Notice No.435 published on 19th January,2022. It was the finding of the 1st Respondent that the explanation proffered by the Applicant for arriving late before the Returning Officer past the time stipulated in the Notice for Election published on 20th January,2022 in Gazette Notice No.435 was not excusable.

8. It is denied that there was any other verdict from the 1st Respondent other than what is exhibited dated 17th June, 2022. This is the decision that was read in open court in the presence of the Applicant.

9. Further, it is urged that in the complaint and the affidavit before the 1st Respondent, the Applicant did not raise any issue regarding communication received from the Returning Officer. Neither was the issue raised at the hearing proper.

10. Both parties filed submissions following directions that the motion be disposed of by way of written submissions.

11. I have had occasion to consider the motion, the supporting grounds, the Statutory Statement and the verifying affidavit. I have considered the replying affidavit in response to the motion. I have had due regard to the submissions by the applicant as well as the learned submissions by counsel for the Respondents. The issue for determination is whether the applicant has established sufficient ground for the grant of the judicial review orders sought.

12. The scope of judicial review was clearly elucidated in the case of Pastoli v Kabale District Local Government Council and Others [2008]2 EA 300 where the Court held as follows;“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

13. The mainstay of the applicant’s case is that he arrived late before the 2nd Respondent due to communication breakdown between him and the 2nd Respondent as the applicant was not part of the WhatsApp group platform which the 2nd Respondent used in communicating to other aspirants regarding the time of submitting nomination papers. It is his case that he was not given updates from the 2nd and 3rd Respondents neither was he informed of a scheduled meeting between IEBC officials and all aspirants contesting for various positions in Embakasi East Constituency.

14. The 2nd Respondent being a quasi-judicial body is subject to the supervision of this court under judicial review. The court has the obligation to consider the process before the 2nd Respondent to establish whether the process and decision was tainted with illegality, irrationality, unreasonableness or procedural impropriety.

15. The complaint by the Applicant before the 2nd Respondent was:“I was not cleared due to the fact that on the material day of presenting papers, I arrived late by 35 minutes. The reason for inconvenience was a result of something to do with the position of the stamp from the Office of the Commissioner of Oaths hence causing the delay of the EACC that was rectified.”

16. In his affidavit in support of the complaint, the applicant depones at paragraph 3 and 4 thus:3. That subject to IEBC guidelines on registration of candidates that I had been previously slotted for clearance on 7th of June, 2022 but due to unavoidable circumstances, I arrived at the IEBC Sub county station at 4. 35 pm whereupon the Returning Officer (RO), one Mr. Daniel Musyoki declined to allow my clearance citing that I am late past the stipulated time.”4. That the chief reason for the inconvenience was something to do with the positioning of the stamp from the office of my advocate that the EACC claimed was supposed at the far end (sic) and not in the middle of the page hence causing the delay but it was rectified at the expense of time.”

17. From his own averments on oath, it is clear that the complaint before the 2nd Respondent had nothing to do with any lack of communication or updates from the IEBC as now alleged in the present application.

18. I have perused the decision of the 2nd Respondent. The case for the applicant before the 2nd Respondent is clearly captured at paragraph B. the Respondent’s case is summarised at paragraph C. It is clear from the record that both parties were accorded a hearing as required in law.

19. The record clearly shows that the 2nd Respondent considered the relevant matters before it and it correctly addressed itself to the law. The Applicant’s attempt to change the substratum of his case before the 2nd Respondent must come a cropper as the judicial review jurisdiction does not open the door for new evidence.

20. The record shows that the 2nd Respondent heard the parties and considered the evidence before it. The Applicant has made a serious allegation that the verdict that he and the Respondent have annexed is not the verdict delivered in open court. He offers no evidence of this. The law is that whosever alleges proves. Section 107 of the evidence Act provides:(1)107. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

21. The bona fides of the Applicant’s allegations of a different verdict having been delivered by the 2nd Respondent are questionable given that the Applicant has attempted in these proceedings to change the substratum of his case in his pleadings in this case.

22. The decision of the 2nd Respondent shows that it appreciated the applicable law and arrived at the right decision. There is no illegality, irrationality or procedural impropriety in the proceedings or in the decision.

23. The Application before court is this without merit. The same is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY, 2022. ............................A.K. NDUNGUJUDGE