[2017] KEHC 4826 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

JR-MISC APPLIC NO. 36 OF 2017

IN THE MATTER OF AN APPLICATION BY INNICENT MASARA FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS AND CERTIORARI

AND

IN THE MATTER OF SECTIONS 4 (F) & 27 (1) OF THE IEBC ACT (NO: 9 OF 2011)

REPUBLIC...................................................................................EX-PARTE APPLICANT

VERSUS

IEBC-RETURNING OFFICER-HOMA BAY..............................................1ST RESPONDENT

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION............2ND RESPONDENT

RULING

1. This matter was brought to court through Judicial Review Miscellaneous exparte Notice of Motion application dated 31st May 2017 wherein the following orders were sought:-

1. THAT this court be pleased to grant leave to the applicant to apply for an order of mandamus to issue to the respondent’s compelling them to receive the nomination papers of the applicant for the position of SENATOR-HOMABAY COUNTY and to clear his candidature if he meets the requisite threshold.

2. THAT this court be pleased to grant leave to the applicant to apply for an order of certiorari to issue to bring into court and quash the proceedings and decision of the respondent’s refusing to receive the nomination papers of the applicant for the position of SENATOR HOMABAY COUNTY.

3. THAT leave granted herein do operate as stay of the decision of the respondents refusing to receive the applicant’s nomination papers for the position of SENATOR HOMABAY OCUNTY.

4. THAT the costs of this application to be provided for.

2. The application is supported by the affidavit of one Charles Mkei Onguka who describes himself as the chief agent of one Innocent Masara, a senatorial aspirant for the Homa Bay senate seat under the Amani National Congress (ANC) party ticket. He avers that the said Innocent Masara was, due to illness, not able to present his nomination papers to the 1st respondent on the date scheduled for presentation of the said papers, being 28th and 29th May 2017 whereupon he sent a letter to the respondents to explain the aspirant's predicament and to request for another date for the presentation of the said papers. He adds that on 30th May 2017 he accompanied the said Innocent Masara to the respondent's offices ostensibly to present the nomination papers but that the respondent's declined to receive them on the basis that the time for presentation of the senatorial nomination papers had already lapsed.

3. He contends that the respondents acted arbitrarily in not only giving conflicting dates for the presentation of the nomination papers but were also unreasonable in declining to receive the papers in view of the fact that they had been duly informed of the aspirant's illness.

4. On 31st May, 2017, the application was certified as urgent by Justice H. Omondi, sitting at Homa Bay High Court. Justice Omondi then directed that the application be served upon the respondents and be heard inter partes at Kisii High Court on 2nd June 2017.

5. The respondents entered appearance and filed a notice of intention to raise a preliminary objection through M/s Ogejo & Olendo Advocates and when the case came up for hearing on 2nd June 2017, both Mr. Ogejo for the respondents and Mr. Achura for the applicant intimated to the court that they were ready to argue the preliminary objection in view of the urgency of the case based on the strict nomination process timelines set by the respondents.

6. Mr Ogejo stated that the preliminary objection was premised on the provisions of Articles 87(1) and 88(4)(e) of the Constitution, Section 74 of the Elections Act No. 24 of 2011,Section 4(e) of the Independent Electoral and Boundaries Commission (IEBC) Act No. 9 of 2011 and Schedule 4 of the IEBC Act. He argued that the dispute before the court relates to a nomination process and that under the above cited sections of the law, disputes relating to nominations fall under the IEBC disputes resolution committee in the first instance and can only be escalated to the High Court through a review process by a party who is aggrieved by the decision of the said Commission under Section 74(2) of the Elections Amendment Act No. 1 of 2017. He thus contended that this court lacks jurisdiction to deal with the dispute in the first instance and can only entertain it at the review stage after the same has been dealt with by the IEBC committee.

7. In a rejoinder, Mr. Achura for the applicant stated that Article 88(4) of the Constitution does not provide for the settlement of disputes between IEBC and a party as is the scenario in the instant case as it only provides for settlement of disputes between the various contestants to the elections. According to Mr. Achura, this court has jurisdiction to hear and determine the instant application because IEBC cannot be expected to be the judge in its own case since the application challenges the actions of the IEBC.

Analysis and determination

8. I have carefully and perused the pleadings filed by the parties in this case and the advocates' respective oral submissions on the respondents' the preliminary. The main issue that presents itself for determination is whether this court has jurisdiction to determine the application.

9. The law on preliminary objection was well articulated in the celebrated case ofMukhisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Company Limited, (1969) E.A. 696as follows;

“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Further,

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of the judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”

10. In almost all the legal systems of the world, the term “jurisdiction” has emerged as a critical concept in litigation. Halsbury’sLaws of England(4th Ed.) Vol. 9 at page 350 thus defines “jurisdiction” as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol. 3, at page 113reiterates the latter definition of the term ‘jurisdiction’ as follows:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”.

11. From these definitions, it is clear that the term “jurisdiction”, as further defined by The Black’s Law Dictionary, 9th Edition, is the Court’s power to entertain, hear and determine a dispute before it.

12. The Supreme Court expressed itself on the issue of jurisdiction in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLRas follows:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission(Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

13. Jurisdiction is what gives a Court the authority to inquire into a matter before it and where a Court makes a finding that it has no jurisdiction to deal with a matter, the only course of action open to the Court is the one prescribed by Nyarangi, JA in the celebrated case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, [1989] KLR 1where the learned Judge stated:

“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law down tools in respect of a matter before it the moment it holds the opinion that it is without jurisdiction.”

14. In the instant case, the respondents contended that this court lacks jurisdiction to entertain the application while citing the provisions of the Constitution, the Elections Act and the IEBC Act. To that extent I find that the preliminary objection is well grounded as it raises an issue of law regarding jurisdiction which has the potential of finally determining the entire case should the court find that it lacks jurisdiction in the matter.

15. Articles 87(1) and 88(4)(e) of the Constitution stipulates as follows:-

“87. (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.”

88 (4) (e) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

(e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;

16. Section 4 of the IEBC Act states:

“4. Functions of the CommissionAs provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

(a) the continuous registration of citizens as voters;

(b) the regular revision of the voters’ roll;

(c) the delimitation of constituencies and wards in accordance with the Constitution;

(d) the regulation of the process by which parties nominate candidates for elections;

(e) the settlement of electoral disputes, including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results; the registration of candidates for election;

(g) voter education;

(h) the facilitation of the observation, monitoring and evaluation of elections;

(i) the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;

(j) the development and enforcement of a code of conduct for candidates and parties contesting elections;

(k) the monitoring of compliance with the legislation required by Article82(1)(b) of the Constitution relating to nomination of candidates by parties;

(l) deleted by Act No. 36 of 2016, s. 30;

(m) the use of appropriate technology and approaches in the performance of its functions; and

(n) such other functions as are provided for by the Constitution or any other written law.”

17. Section 74 of the Elections Act provides:

“74. Settlement of certain disputes (1) Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results. (2) An electoral dispute under subsection (1) shall be determined within seven days of the lodging of the dispute with the Commission. (3) Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.”

18. From the above legal provisions I note that the Commission is mandated to settle electoral disputes including disputes relating to or arising from nominations without any exceptions and therefore the applicant's argument that the Commission lacks jurisdiction to entertain the instant case is misconceived.

19. In the present case, the applicant has by-passed the commission, which is the body mandated by the law to hear disputes arising from nominations and the basis that he is apprehensive of the commission's impartiality in view of the fact that commission is a party in the dispute at hand. I find that the applicant's apprehension is far-fetched, speculative and not well grounded because, in the strict sense, the commission is not an interested party in the upcoming elections except as an independent arbiter who, in any event, will be guided by the law in determining the disputes that may arise in the nomination process. Furthermore, the applicant will still be at liberty to refer the dispute to this court for review should he be dissatisfied with the commission's decision.

20. The law is clear with regard to circumstances such as the one now before me, and courts have expressed themselves quite succinctly on this point and stated that where there are specialised procedures provided by law or the Constitution for the resolution of disputes they should be followed. See in this regard the case of Kones -vs- Republic & Another ex parte Kimani wa Nyoike & 4 Others (2008)3 KLR (EP); Speaker of the National Assembly -vs- Njenga Karume (2008) IKLR (EP) 425, Francis Mutuku v Wiper Democratic Movement-Kenya & 2 Others [2015] eKLR and Alphonse Mwangemi Munga & 10 Others -vs- African Safari Club Ltd Petition No 564 of 2004.

21. Majanja J in a similar scenario to the instant case but regarding the specialised procedure provided for the resolution of political party disputes, in the case of George Okode & Others -vs- Orange Democratic Movement & Others Petition No. 294 of 2011, while directing the parties to present their grievances before the Political Parties Tribunal, observed as follows:

“I have considered this matter and it deals with political party activities. There is now a Political Parties Tribunal established under the Political Parties Act that is intended to resolve such issues. This is in line with Article 159 of the Constitution which provides that judicial power vests in Courts and Tribunals. It is therefore not inconsistent with Article 22 of the Constitution to refer such a matter to a body constituted for that purpose.”

22. A similar stand was adopted, in declining to issue an injunction, in the case of Stephen Asura Ochieng & Others -vs- Orange Democratic Movement and Others Petition No. 288 of 2011. In that case, the Court held as follows:

“[12] To my mind, the intention behind the establishment of the Political Parties Tribunal was to create a specialised body for the resolution of inter party and intra party disputes. The creation of the Tribunal was in line with the provisions of Article 159 of the Constitution which provides for the exercise of judicial power by courts and tribunals established under the constitution and for the use of alternative dispute resolution mechanisms….’

[13] To my mind, the provisions of Section 40 (2) of the Political Parties Act must be interpreted as permitting aggrieved members of a political party to bring their grievance before the Political Parties Tribunal where the political party has neglected or refused to activate the internal party dispute resolution mechanism. The section must be read as contemplating assumption of jurisdiction by the Tribunal where the internal party mechanism has failed to hear and determine a dispute. Indeed, I do not believe that this court has jurisdiction to entertain this Petition at all in view of the nature of the petitioners’ grievance and the parties involved.”

23. Majanja J had the following to say on the rationale for requiring that political disputes are heard within the mechanism established under the provisions of the Political Parties Act, in the case of Francis Gitau Parsimei -vs- National Alliance Party and Another Nairobi Petition No. 356 of 2012 [2012] eKLR.

“[4] At the core is whether this court should intervene to stop the electoral process so that a party who claims that his or her rights have been infringed can agitate his rights before the court. To determine this issue, the Constitution must be read a whole. On the one hand there is the Bill of Rights which protects, inter alia, the political rights of the petitioners. These rights are enforceable under the provisions of Article 22. Article 22 offers the petitioners direct access to the High Court to enforce fundamental rights and freedoms. There is also Article 258 which entitles any person to move the court where the Constitution is contravened or is threatened with contravention. The petitioners have exercised the option to invoke these provisions to move the court.

[5] On the other hand, it must be clear that political rights are exercised through a political process involving many actors; the citizens and institutions. This is the process provided for under the provisions of Chapter Seven of the Constitution titled, “Representation of the People.” These provisions are operationalized by the Independent Electoral and Boundaries Commission Act, 2011, the Elections Act, 2011 and the Political Parties Act, 2011. Individual political rights and the electoral process cannot be divorced from one another but must go hand in hand. It is therefore proper that political rights are realized within a structured process that takes into account the larger interests of the society and the need for a free and fair election which is enhanced by a self-contained dispute resolution mechanism underpinned by the Constitution itself and statutes enacted to give effect to its provisions.”(Emphasis added)

24. Taking a cue from the above cited authorities, I find that the circumstances of this case dictate that this Court, despite its wide jurisdiction under the Constitution, does not assume such jurisdiction. The dispute is clearly a dispute that falls within the mandate of the commission in which the Constitution and the Elections Act vests jurisdiction. It involves a dispute emanating from the nomination process for which Section 74 of the Elections Act and Article 88(4)(e) of the Constitution state shall be handled by the commission. The commission has an internal dispute resolution mechanism which the law requires the applicant to exhaust before reverting to the court process if he is dissatisfied with the outcome. I find that to hold otherwise would be to undermine and defeat the mechanisms and institutions provided by law, which are underpinned by the Constitution.

25. For the above reasons, I find that this Court has no jurisdiction to entertain the application and the Court being a creature of the Constitution downs its tools without any further ado. The respondents' preliminary objection succeeds. This application is therefore struck out, but with orders that each party bears its own costs.

Dated, signed and delivered in open court this 5th day of June, 2017

HON. W. OKWANY

JUDGE

In the presence of:

Mr. Achura for the Applicant

Ogejo for the Respondents

Omwoyo: court clerk