[2022] KEHC 12058 (KLR)

Republic v Independent Electoral & Boundaries Commission Dispute Resolution Committee & 3 others; Njoka (Applicant) (Judicial Review E002 of 2022) [2022] KEHC 12058 (KLR) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12058 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Judicial Review E002 of 2022

RM Mwongo, J

July 1, 2022

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW IN THE FORM OF ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE ARTICLES 10, 22, 25, 27, 38, 47 AND 50 OF THE CONSTITUTION OF KENYA, 2010ANDIN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT NO. 4 OF 2015 AND IN THE MATTER OF THE DECISION OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION DISPUTE RESOLUTION COMMITTEE VIDE A DECISION DATED 17TH JUNE, 2022

Between

Republic

Applicant

and

Independent Electoral & Boundaries Commission Dispute Resolution Committee

1st Respondent

Independent Electoral & Boundaries Commission

2nd Respondent

Caroline Muriithi

3rd Respondent

United Democratic Alliance

4th Respondent

and

Joseph Murimi Njoka

Applicant

Judgment

1. The Applicant’s Judicial Review application herein seeks the following orders:a)An order of Certiorari to remove into this Honourable Court and quash the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee made on June 17, 2022 dismissing theex-parte Applicant’s complaint thereby disqualifying the ex-parte candidature for the Member of County Assembly, Karumandi Ward.b)An order of Certiorari to remove into this Honourable Court and quash the decision of the Independent Electoral and Boundaries Commission Dispute made on June 1, 2022 clearing the 3rd Respondent to contest for the member of County Assemble, Karumandi Ward as the Interested Party’s candidate.c)An order of prohibition restraining the 2nd Respondent from printing the ballot papers bearing the 3rd Respondent’s name or undertaking any further step in preparation for August 9, 2022 general election in which the 3rd Respondent is a candidate for the position of Member of County Assembly, Karumandi Ward, Gichugu Constituency.d)An order of Mandamus compelling the 2nd Respondent to clear, register and gazette the name of the ex-parte Applicant as the duly nominated candidate of the Interested party for the August 9, 2022 General Elections.e)Any other order that the court may deem fit and just to grant.f)The costs of and occasioned by this Application.

2. The application was filed under certificate in Milimani High Court on June 22, 2022, and transferred by order of the Court on June 23, 2022, for hearing in Kerugoya High Court, as the elective office and the parties are in Kirinyaga County. The file was received on June 28, 2022 and certified urgent. Directions were forthwith issued for the service of the substantive suit and filing of responses thereto by all respondents. In addition, due to the urgency of the matter, parties were directed to file written submissions, and appear for hearing on June 30, 2022. Parties complied, and by consent it was agreed that the hearing proceed by reliance on documents only, and oral hearing was waived.

3. The order sought to be reviewed is the decision of theIEBC Dispute Resolution Committee (DRC) Panel 1 in Complaint No 243 of 2022. There, the IEBC DRC found that it had no jurisdiction to intervene in political party disputes and dismissed the complaint.

4. The Applicant/Complainant’s complaint there was that being an Aspiring candidate in the United Democratic Alliance (UDA) party ticket for the Kerugoya Ward in Gichugu Constituency, the UDA Party Nominations of 14th 2022 April, were marred by malpractices. He thus duly filed a complaint in the UDA Party’s Electoral and Nomination Dispute Resolution Committee (ENDRC) which, on April 18, 2022 ordered repeat nominations (ExbJ MN 1). He alleges he won the re-nomination.

5. Eventually, the dispute found its way in a complaint before the Political Parties Disputes Tribunal (PPDT), which nullified his competitor’s (3rd Respondent’s) Party Nomination certificate by orders of thePPDT dated 30th April and 20th 2022, May. As a result, he was issued his Party’s Nomination Certificate, which he presented to the IEBC Returning Officer, the 2nd Respondent.

6. TheIEBC Returning Officer however declined to clear him, on the ground that his competitor’s name was on both the CRMS at the instance of his party, UDA; and was also in the Gazette Notice already published by the IEBC. According to him, the law did not allowIEBC to clear two candidates from the same party for the same electoral position.

7. Dissatisfied, the applicant filed a complaint with theIEBC Dispute Resolution Committee (DRC), established for that purpose. The IEBC DRC in its Decision dated June 17, 2022, declined to clear the complainant saying it lacked jurisdiction to determine the complaint relating to party disputes.

8. In her replying affidavit, the 3rd Respondent, Caroline Muriithi, admits that a repeat poll was conducted in one polling station, but denies that the applicant won; that the applicant filed proceedings in the PPDT, which nullified her election and referred the matter to theUDA Elections Board to make a decision as to the winner; that she was again declared the winner and was issued with the Party Nomination certificate; that her name was forwarded to the IEBC and she was gazzetted; that the PPDT’s order did not direct theIEBCto substitute her name with the applicant’s name, or direct that her name be withdrawn

9. The 3rd respondent added that following her gazettement, the Returning Officer’s only duty was to ascertain she was qualified; that the applicant’s case in the IEBC DRC was incompetent.

10. Further, she alleged that the applicant was in any event unqualified and exhibited as ‘CM1’ a judgment in from Gichugu PM’s Court Criminal Case No 415 of 2013 in which the applicant was convicted of conspiracy to defraud contrary to section 317 of the Penal Code, and Making a document without authority contrary to section 357 of the Penal Code. He was sentenced to one (1) year imprisonment on each count.

11. The Returning Officer filed a replying affidavit on behalf of the 1st and 2nd Respondents. He stated that pursuant to Gazette Notice No 435 of January 20, 2022, aspirants for MCAoffice were required to present their nomination papers between 1st and June 7, 2022; that on June 1, 2022 the 3rd respondent presented her nomination papers which were in order; and that he also ascertained that she was the nominated aspirant for theUDA Party as per the list submitted by that Party to the IEBC.

12. He added that on June 2, 2022, he received a letter dated May 31, 2022, from Mitei & Mitei Advocates to the effect that the 3rd respondent’s nomination had been nullified by the PPDT; that he could not act on the said letter as he had already issued a Certificate of Nomination and submitted her name to IEBC; that the applicant later lodged a complaint with the IEBC DRC which dismissed the complaint on June 17, 2022; and that the present application lacks merit.

13. In his submissions, the issues the complainant seeks determined are:a)Whether the decision of the 2nd Respondent to clear and register the 3rd Respondent to contest but deny the applicant clearance was legal fair and reasonable.b)Whether theIEBC DRC’s dismissal of the complaint meets the threshold of legality fairness, and reasonableness and proportionality.c)Whether the Applicant is entitled to the orders sought.d)Who bears costs.The issues raised by the applicant concern the propriety of the decisions of the 2nd Respondent (IEBC) and the 1st Respondent (IEBC-DRC)

14. I have carefully considered the documentation availed by the parties, their submissions and authorities filed. I will not refer herein to all the authorities, but have considered them. I now deal with the issues raised.

The Propriety Of The 2nd Respondent’s Denial To Clear The Applicant 15. The court’s role in judicial review is to examine the legality of the dispute and not to examine and determine the contested matters of evidence. This was well put by Mativo, J in Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo [2015] e KLR where it was held:“55. … where the resolution of the dispute before the Court requires the Court to make a determination on disputed issues of fact that is not a suitable case for judicial review. The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.”(Emphasis supplied)………..57. Judicial review looks into the legality of the dispute not contested matters of evidence. To reconcile the diametrically opposed positions presented in this case, it is necessary for the court to hear oral evidence, which is outside the scope of judicial review jurisdiction. Further, as stated later, determining the said issues will involve a merit review, a function that is outside the purview of Judicial Review jurisdiction.” (Emphasis added)

16. In the case of CCK vs Royal Media Services Ltd [2014] eKLR the Supreme Court recognized that the power of Judicial Review emanates from the constitution. The court painted the clearest picture of the evolved nature of Judicial Review in Kenya when it found that:“the power of judicial review in Kenya is found in the Constitution. Article 23(3) grants the High Court powers to grant appropriate relief ‘including’ meaning that this is not an exhaustive list: A declaration of rights; An injunction; A conservatory order; A declaration of invalidity of any law that denies violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights; An order for compensation; An order for judicial review.”

17. In his Handbook on Judicial Review 6th Edition, Michael Fordham opines that:“Judicial review is the court’s way of enforcing the rule of law: ensuring that public authorities’ functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not above the law‟

18. It is in light of the foregoing, that the decision of the Returning Officer is to be viewed. He had in his possession the Gazette Notice No 435 of 2022. It is titled: Notice of Election for Members of the County Assemblies and is issued by the Chairman, IEBC, under The Elections (General) Regulations, 2012. The notice is stated to be pursuant to and in exercise of the IEBC Chairman’s powers conferred by Articles 88 (4), 193, 194 (1) (f) of the Constitution of Kenya, sections 2, 19, 20, 25, 26, 28, 29, 30, 31, 32, 33, 35, 38, 39, 43 and 74 of the Elections Act, 2011 and Regulations 11 (6), 12(1) and 14, Parts III, VIII and IX of theElection (General) Regulations, 2012 the Independent Electoral and Boundaries Commission.

19. The Gazette Notice provides inter alia, as follows:“(c)political parties intending to present candidates in the election shall submit the names of persons contesting in the party primaries, the date and venues of the primaries on or before Saturday, 9th April, 2022, being 21 days before the nomination day.(d)The Commission shall publish, in the Gazette the names of the persons contesting in a party primary and the date of the party primary within seven (7) days of receipt of the names of the candidates.(e)A political party intending to present candidates in this election shall conduct its primaries and resolve intra-party disputes on or before Friday, April 22, 2022. ”

20. Section 13(1) & (2) of the Elections Act require a political party to nominate its candidates and provide the name of the candidate to theIEBC. The name cannot be revoked or changed after the nomination of that person by the Commission.

21. I understood the Returning Officer to state that he received the 3rd Respondent’s nomination papers on June 1, 2022, the first day notified for nominations under the Gazette Notice. She was a member of the UDA Party. He found her papers in order. He checked to ascertain her name had been duly submitted by UDA pParty as required and found it had been so submitted. He issued her with an IEBC nomination certificate for Karumaindo Ward.

22. The following day, June 2, 2022, he received a letter from a law firm stating that the 3rd Respondent’s election had been nullified by thePPDT. He said he was powerless to do anything, having already issued the Nomination Certificate.

23. On his part, the applicant stated that he wrote on May 25, 2022 to his Party, UDA, asking them to comply with the PPDT orders nullifying the party nomination (JMN4). On 31st May he wrote to IEBC a letter notifying IEBC that the 3rd respondent’s nomination “was annulled by the PPDT” judgment of April 30, 2022. The letter “urge[d] the Commission not to clear and /or register” the 3rd respondent. The letter also included a decree of the PPDT. It was acknowledged by the Returning Officer and stamped received at 1. 54 pm the same day.

24. The orders sought by the Applicant before thePPDT were, inter alia, as follows:- injunction to restrain the UDAand TheUDA Party National Elections Board from submitting the name of Caroline Muriithi (3rd Respondent herein) to the IEBC as the candidate for UDA-declaration that Caroline Muriithi acted illegally and ultra vires the Party’s Nominations and Dispute s Resolution Committee

25. However, the PPDT Decree exhibited by the applicant contained the following orders:a)That the Declaration of the 1st respondent (Caroline Muriithi) as the Party nominee for Member of County Assembly, Karumandi Ward is illegal, and invalid. Further that the actions of the Returning Officer were illegal and invalidb)That the matter is referred back to the National Election Board to strictly comply with the orders of the Electoral and Nominations and Disputes Resolution Committee….”

26. These orders were not enforceable against theIEBC or the Returning Officer. Under section 39(1)(a) and (b) of the Political Parties Act (PPA), the jurisdiction of thePPDT is to determine the following types of disputes: disputes between members of a political party; and disputes between a member of a political party and the political party. Under section 41(3) PPA, the decision of the tribunal is enforceable as an order of a Magistrates court, obviously as against parties thereto, and the tribunal is granted the powers of the High Court to punish any acts amounting to contempt – also, obviously, as against the parties to the dispute.

27. Clearly, the applicant’s Party and the Party’s Elections Board are the ones that were at fault and in breach of the PPDTorders. As such the proper action was for enforcement action through thePPDT to be invoked as against those bodies.

28. I have noted that the disputes concerning the party nominations commenced as far back as April 14, 2022, with the party nominations, followed by party internal dispute resolution mechanism, followed by the PPDT at Nyeri which issued orders on May 20, 2022. In the meantime, the time was ticking inexorably towards the gazetted nomination day by the IEBC, and the applicant ought to have taken note of that fact by seeking early enforcement of orders in his favour by the PPDT as against his party structures.

29. It was not until May 30, 2022, that the applicant obtained a decree, enforceable as against his party, UDA and its structures.

30. As far as the Returning Officer is concerned, therefore, I am unable to fault his actions, which he conducted entirely within the law and the gazetted guidelines.

The Propriety of the IEBC Dispute Resolution Committee’s Dismissal of the Applicant’s complaint 31. As earlier stated, the applicant filed a complaint with the IEBC DRC against the actions of the Returning Officer, the 3rd Respondent, and the UDA Party. I have not seen the pleadings, but from the summary in the Ruling of the DRC, the Applicant/complainant was urging the DRC to:“determine that the 2nd Respondent (Caroline Muriithi) was not duly nominated on account of the existence of the PPDT Orders and that the Committee (DRC) do direct the Returning Officer to clear him” (Para 4 of the Decision).

32. The question is what is the mandate and jurisdiction of the IEBCDRC? This is the same question that the DRC posed when dealing with the complaint before it. The DRC quoted section 74 of the Elections Act (EA), and highlighted that its role under that section is “to settle electoral disputes including disputes relating to or arising from nominations”

33. The DRC then went into the definition of “nomination” as defined in Section 2 of the Elections Act, and determined that a dispute between a party and its member is not a dispute contemplated in the Elections Act in terms of the section 2 (EA) definition of the term.

34. Section 2 of the Elections Act provides as follows:“‘nomination’ means the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act”

35. Clearly, this section relates to the process whereby after parties have completed their nominations processes including resolving any disputes in respect thereof, they then have then to submit their candidates to the Commission through theIEBC Returning Officer on and pursuant to the gazetted nomination date.

36. The process is envisaged in section 13(2)EA whereby parties having nominated their candidates, are not entitled to change the name of the nominee after the nomination has been received by the Commission.

37. In practical terms, the guidance is given by the Gazette notice which provides:“(d)The Commission shall publish, in the Gazette the names of the persons contesting in a party primary and the date of the party primary within seven (7) days of receipt of the names of the candidates.”

38. Seven days after parties provide the name of their nominee, the Commission gazettes the names. It is those persons who are then expected to attend the nomination day set by theIEBC to receive nominees and clear them formally. TheIEBC’s responsibility at this stage is to ensure that the nominees have the required legal and ethical qualifications and any other qualifications required by law. This is the nomination exercise conducted by the Commission when nominees of parties and independent candidates attend on nomination day.

39. It is this submission of the candidates to the Commission that is the subject of theIEBC DRC’s dispute resolution mandate. I think that the DRC would be acting ultra vires if it sought to disentangle or determine the dispute between UDA Party and its nominee party members as regards whose name should have been forwarded to the IEBC.

40. Indeed, the applicant’s argument is that that the PPDThad annulled the 3rd Respondent’s nomination at the time the IEBC cleared her, yet that the 3rd Respondent was not eligible for clearance. In my view, it was incumbent on the applicant to ensure its orders obtained from the PPDT had been enforced to enable the Commission to receive from the UDA its rightful nominee.

41. This was particularly relevant as I have noted that the PPDT Ruling of May 30, 2022 at Paragraph 26-27 castigated the UDA party andUDA National Elections Board for “the conduct unbecoming” of availing it [PPDT] information or evidence on which to rely as legitimate evidence, and there were unexplained inconsistences.

42. The upshot is that I agree with the decision of the IEBC DRC that they had no mandate to intervene in correcting and or rectifying the processes commenced by and muddied under, theUDA Party process.

43. Accordingly, for all the foregoing reasons, the application is dismissed with costs.

DATED AND DELIVERED AT KERUGOYA THIS 1ST DAY OF JULY, 2022. .............................................................HON JUSTICE RICHARD MWONGOJUDGEDelivered in the presence of:1. Kathungu for the 1st & 2nd Respondents2. Asiimwe holding brief for Kiplagat for the Exp Applicant3. Mr. Murage, Court Assistant