[2022] KEHC 12657 (KLR)

Republic v Independent Electoral and Boundaries Commission & 2 others (Judicial Review E017 of 2022) [2022] KEHC 12657 (KLR) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12657 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E017 of 2022

JM Mativo, J

June 20, 2022

Between

Republic

Applicant

and

Independent Electoral and Boundaries Commission

1st Respondent

Wafula W. Chebukati

2nd Respondent

Attorney General

3rd Respondent

Ruling

1. This ruling determines a Notice of a Preliminary Objection filed by the 1st and 2nd Respondent’s. In order to put the Preliminary Objection into a proper perspective, it is necessary to highlight, albeit briefly, the applicant’s case as I glean it from the pleadings. The applicant prays for a writ of certiorari to quash the 1st Respondent’s media release issued on 4th June 2022 dated 17th May 2022 and the 3rd Respondent’s decision made on 7th June 2022 declining to clear him to vie for the Mombasa County Gubernatorial seat in the 9th August 2022 general elections.

2. He also prays for a declaration that the 1st, 2nd and 3rd Respondents’ decision obstructing him from contesting in the aforesaid elections contravenes Articles 24, 25, 47, 38, 48, 163 (2) of the Constitution and section 74 of the Elections Act,1 the Rules of Natural Justice, the sub judice Rule and the exhaustion doctrine. Prayer (2) of the application is spent. The other prayers sought were relevant at the leave stage. They appear to have been lifted from the application seeking leave, so, it will add no utilitarian value to rehash them here1Act No. 24 of 2011.

3. Briefly, the applicant is aggrieved by a media release issued on 4th June 2022 and dated 17th May 2022 and the 1st and 2nd Respondent’s decision to bar him from contesting in the said elections which he claims affects his legal rights. He claims that the 1st Respondent’s officials disqualified him citing directions by the 2nd Respondent that he was impeached despite having an active appeal against the said impeachment pending in the Supreme Court.

4. On 14th June 2022, the 1st and 2nd Respondents filed a Notice of a Preliminary Objection objecting to the applicant’s case stating: - that this court lacks jurisdiction; that the application offends Article 88 (e) of the Constitution as read with section 74 of the Elections Act2 and the Elections (General) Regulations and Rules of Procedure on Settlement of Disputes; that the issues raised in this matter are sub judice; that the applicant has since filed a complaint before the IEBC Dispute Resolution Committee; and that the application is incompetent.2Act No. 11 of 2011.

5. In his submissions, the 1st and 2nd Respondent’s counsel submitted that the application offends Article 88 (4) of the Constitution, section 74 of the Elections Act and the Elections (General) Regulations and the Rules of Procedure on Settlement of Disputes. He also submitted that the issues raised in this case are sub judice because the same issues are the subject matter in the following constitutional Petitions pending before a three-judge bench, namely, E 090 of 2022 consolidated with Petition no E158 of 2022, E 221 of 2022, E 230 of 2022, E 234 of 2022, E 230 of 2022, E234 of 2022, E010 of 2022, E 249 of 2022, E 019 of 2022.

6. He submitted that the application is premised on Article 47 of the Constitution and by extension the provisions of the Fair Administrative Actions Act3 (the FAA Act) which flows from the said Article. He submitted that section 9 of the FAA Act requires an applicant for judicial review orders to exhaust the mechanisms provided by the statute. He also pointed out that the applicant concedes that he has a live dispute before the IEBC Dispute Resolution Committee. Further, he submitted that the applicant has not applied for an exemption as provided under section 9 (4) of the FAA Act citing exceptional circumstances to warrant the exemption. He relied on Krystalline Salt Limited v Kenya Revenue Authority4 in support of the proposition that an applicant must apply for an exemption and in support of the proposition that the law contemplates an application.3Act No. 4 of 2015. 4[2019] e KLR

7. On sub judice, counsel submitted that the orders sought are similar to the orders sought in the above listed matters. He relied on Republic v Paul Kihara Kariuki & 20 others ex parte Law Society of Kenya5which defined the elements of sub judice. Lastly, he submitted that the issues raised in this suit relate nominations, so it’s an election related dispute. He cited Kennedy Mbuki v Rachel Nyamai6 which held that electoral disputes are governed by the Elections Act and not judicial review process.5[2020} e KLR.6[2018] e KLR.

8. On his part, the applicant’s counsel submitted that the applicant seeks to invoke this courts supervisory jurisdiction challenging a public body’s unreasonable decision. He argued that the IEBC Dispute resolution mechanism only deals with nomination disputes and it cannot issue prerogative orders. He argued that tribunal matters are matters of fact. Additionally, he submitted that the exhaustion doctrine was waived by the media release which was communicated before the applicant could submit his application for clearance. He argued that this court has inherent jurisdiction and that the dispute before this court is an administrative dispute and not an electoral dispute. He submitted that the issue is whether the impugned decision is capable of being quashed by this court.

9. Also, the applicant’s counsel submitted that the returning officer breached section 74 of the Elections Act by blocking the applicant from exercising his rights. He argued that this court has power under Article 165 (3) (d) of the Constitution. Additionally, he submitted that section 9 (4) of the FAA Act provides for an exemption and urged this court to invoke the said section and grant an exemption to exhaust he said remedy. He relied on Republic v Firearms Licensing Board & another ex parte Boniface Mwaura7 which highlighted the facts to be taken into account such as the effectiveness, availability and adequacy of the remedy. He argued that the IEBC, which is the only body to clear candidates exhibited bias against the applicant including refusing to acknowledge that the applicant has an active appeal before the Supreme Court. He argued that the IEBC comprises of the same body, so it cannot be impartial. He cited Jeremiah M. Ocharo v Dr Njoka & 3 others and argued that in exceptional circumstances the alternative remedy may not be suitable. He argued that the court has jurisdiction to consider valid grievances disclosing issues which cannot be determined by a quasi-judicial body. He submitted that statutory provisions ousting court’s jurisdiction should be construed narrowly. (Citing NASA v IEBC). On the argument that the suit is sub judice, he argued that it is inapplicable in this case and that the orders sought before the 3-judge bench are not the same the orders sought in this case.7[2015] e KLR.

10. A convenient starting point in addressing the instant objection is to recall that Article 88 of the Constitution establishes the Independent Electoral and Boundaries Commission. It also stipulates its mandate. Relevant to the issue at hand is Article 88 (f) which provides that 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. The governing statute is the Elections Act whose preamble reads- AN ACT of Parliament to provide for the conduct of elections to the office of the President, the National Assembly, the Senate, county governor and county assembly; to provide for the conduct of referenda; to provide for election dispute resolution and for connected purposes. Section 74 of the Act provides for settlement of disputes. It reads: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 ten 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.

11. The above provisions prescribe one of the constitutional and statutory mandates of the IEBC which is to hear and determine disputes arising from nominations. Two pertinent questions arise from the instant objection. One is whether this court is divested of jurisdiction on account of the applicant’s failure to exhaust the dispute resolution mechanism provided under the above provisions. Two is the question whether this suit is sub judice. Regarding the first question, I have in numerous previous decisions pronounced myself on the doctrine of exhaustion. In fact, both counsels buttressed their arguments by citing my decisions on the subject, the only difference being, each party relied on the decisions only to the extent the decisions supported their arguments. I will inevitably repeat what I said in the said decisions to the extent it would be relevant to the issues at hand.

12. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks Judicial Review of that action without pursuing available remedies before the agency itself. The court must decide whether to review the agency's action or to remit the case to the agency, permitting Judicial Review only when all available administrative proceedings fail to produce a satisfactory resolution. This doctrine has implicit valued juridical lineage in Kenya.8 As the Court of Appeal9held in Speaker of National Assembly vs Karume:108Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR9Ibid.10{1992} KLR 21. “Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures."

13. Undoubtedly, the above decision was pronounced prior to the promulgation of the 2010 Constitution. Nevertheless, countless post-2010 court decisions in Kenya have incorporated the reasoning and have added validation and justification for the doctrine under the 2010 Constitution.11 For example, in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others12 the Court of Appeal provided the legitimate justification and foundation for the doctrine as follows: -11Ibid.12{2015} eKLR.“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...These accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution."

14. The High Court in the Matter of the Mui Coal Basin Local Community13explicated the rationale in the following words: -13{2015} eKLR.“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fuelled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases..."

15. Many other decisions by our superior courts (including the decisions cited by both parties in this case) have repeatedly up held the rationale for the doctrine of exhaustion. Undeniably, two principles emerge from case law. First, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.14 Two, the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.14Ibid.

16. Undisputedly, the applicant is aggrieved by the 1st and 2nd Respondents’ refusal to clear him to vie for the Nairobi County gubernatorial seat in the forthcoming general elections. The Elections Act defines nomination as follows: - "nomination" means the submission to the Commission of the name of a candidate in accordance with the Constitution and this Act. Plainly, the applicant’s grievance is a nomination dispute within the provisions of Article 88(f) of the Constitution and section 74 of the Elections Act.

17. The next question is whether there is a justification for by passing the mechanism provided under the statute. The applicant argues that before this court is an application premised on judicial review grounds and only this court can issue prerogative orders. He seeks refuge in Article 165 (3) (d) of the Constitution which vests this court with vast jurisdiction. First, the pleadings as drawn present a nomination dispute within the ambit of Article 88(f) of the Constitution and section 74 of the Elections Act. The Court of Appeal in Gabriel Mutava & 2 Ors. v Managing Director Kenya Ports Authority & Another15 underlined the conventional judicial policy as established by the courts over time and now settled that constitutional litigation is not open for every claim which may properly be dealt with under the alternative existing mechanism for redress in civil or criminal law, so, the attempt to seek refuge in Article 165 (3) (d) of the Constitution collapses. By the time the drafters of the Constitution wrote Article 165 (3) (d), they were already aware of Article 88 (f) and if at all their intention to suggest otherwise, they would have said so. In any event it is a cannon of constitutional construction that Articles of the Constitution are to be construed in a holistic manner so as to bring out the intention of the drafters and the true meaning of the entire instrument. To be avoided is the temptation to lift one article above the others.15{2016} eKLR.

18. A corollary to the foregoing is the principle of constitutional avoidance. The applicant cited numerous Articles of the Constitution alleging violations of the same. The principle of constitutional avoidance holds that where it is possible to decide a case without reaching a constitutional issue that should be done.16 Looking at the core grievance and the mandate of the IEBC Dispute Resolution Committee, it’s clear that before this court is a nomination dispute capable of being resolved by the IEBC Dispute Resolution Committee. In any event, the applicant’s counsel admitted in court that subsequent to filing this case, they also lodged a dispute before the IEBC Dispute Resolution Committee. In fact, counsel said they were waiting for the outcome.16See Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others, Petition No. 14, 14A, B & C of 2014.

19. Importantly, section 9(2) of theFAA Act provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under the Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that an applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

20. It is instructive to note the use of the word shall in the above provisions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory.17 The real question in all such cases is whether, a thing, has been ordered by the legislature to be done, and what is the consequence, if it is not done. The general rule is that an absolute enactment must be obeyed, or, fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.17Ibid.

21. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.18 TheLongman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory.19 Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory.18See Dr Arthur Nwankwo and Anor vs Alhaji Umaru Yaradua and Ors (2010) LPELR 2109 (SC) at page 78, paras C - E, Adekeye, JSC .19This definition was adopted by the Supreme Court of Nigeria in Onochie vs Odogwu [2006] 6 NWLR (Pt 975) 65.

22. A proper construction of section 9(2) & (3) leads to the conclusion that the said provisions are couched in mandatory terms. The only way out is the exception provided by section 9(4), which provides that: - "Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above sub-section. First, the applicant must demonstrate exceptional circumstances. The applicant never applied for an exemption as contemplated by the above section. It is uncontested that the impugned decision constitutes an administrative action as defined in section 2 of the FAA act. Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the ex parte applicant can show exceptional circumstances to exempt him from this requirement.2020Koyabe & others v Minister for Home Affairs & others (Lawyers for Human Rights as amicus curiae) {2009} ZASCA 23; 2010 (4) SA 327 (CC) para 34, Nichol & another v Registrar of Pension Funds & others [2005] ZASCA 97; 2008 (1) 383 (SCA) para 15).

23. In several of my previous decisions, I observed that Article 47 of the Constitution and our FAA Act are heavily borrowed from the South African Constitution and the equivalent legislation, hence, jurisprudence from South African courts interpreting similar circumstances and provisions may offer useful guidance. I will usefully refer to the following points from a leading South African decision: -21"21In MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas & another 2002 (6) SA 150 (C) at 156H.i.What is ordinarily contemplated by the words “exceptional circumstances' is something out of the ordinary and of an unusual nature; something which is accepted in the sense that the general rule does not apply to it; something uncommon, rare or different. . .”ii.To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.iii.Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the court must decide accordingly.iv.Depending on the context in which it is used, the word “exceptional” has two shades of meaning: the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.v.Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally speaking, best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. In a nutshell the context is essential in the process of considering what constitutes exceptional circumstances.

24. What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.2222See Koyabe & others v Minister for Home Affairs & others (Lawyers for Human Rights as Amicus Curiae)2010 (4) SA 327 (CC) para 39, Mokgoro J

25. This court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy. Where Parliament provides an appeal procedure, judicial review will have no place, unless the applicant can distinguish his case from the type of case for which the appeal procedure was provided.23 Curiously, the applicant cited bias as one of the reasons he should be exempted. But on the other hand, he said that his complaint before the IEBC Dispute Resolution Committee is awaiting determination, which is an oxymoron, a contradiction of terms.23Sir John Donaldson MR in R v Secretary of State for the Home Department, Ex parte Swati [1986] 1 All ER 717 (CA) at 724a-b.

26. The need for the circumstances of the case to be exceptional means that those circumstances must be well outside the normal run of circumstances found in cases generally. The circumstances do not have to be unique or very rare but they do have to be truly an exception rather than the rule. I am unable to discern any exceptional circumstances in this case, nor, was it demonstrated that there are exceptional circumstances in this case. The attempt to invoke constitutional violations or judicial review grounds does not take away the core complaint, which is, the applicant is aggrieved by refusal to nominate him. It has not been established that applying the dispute resolution mechanism will be impractical, nor has it been demonstrated that the dispute is purely legal and must be determined by this court.

27. My reading of the law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of a successful application under section 9(4) of the FAA act. The person seeking exemption must satisfy the court, first that there are exceptional circumstances, and, second, that it is in the interest of justice that the exemption be given.24 Section 9(4) of the FAA act postulates an application to the court by the aggrieved party for exemption from the obligation to exhaust any internal remedy. Put differently, an applicant must formally apply to the court and demonstrate exceptional circumstances. No application was presented before this court to determine the question whether or not the applicant demonstrated exceptional circumstances. The applicant ought to have exhausted the available mechanism before approaching this court. This case offends section 9 (2) of the FAA act. On this ground alone, the applicant’s application must fail. I dismiss it.24See Nichol & another v Registrar of Pension Funds & others 2008 (1) SA 383 (SCA) para 15; Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd & others 2014 (5) SA 138 (CC) para 115. ) [21]

28. The other issue is whether this case is sub judice. There is no dispute that there several other suits pending determination. Two of the suits were initially filed in this court and I transferred them to Nairobi pursuant to directions issued by the Hon. The Chief Justice. Others suits were filed in other stations but all were transferred in Nairobi and consolidated. All those cases touch on the applicant’s eligibility or otherwise to view for the said seat. Despite the pendency of the said suits, the applicant submitted his nomination papers to the returning officer who refused to accept the papers or clear the applicant. It is this refusal which triggering these proceedings. The issues raised in this case and the challenge of the applicant’s eligibility to vie, now the subject of the said cases is closely intertwined with the issues in this case.

29. Section 5 of the Civil Procedure Act25 provides that any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. The operative words in this provision are “expressly” or “impliedly barred.”25Cap 21, Laws of Kenya.

30. Section 6 of the Civil Procedure Act26 expressly provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.26Ibid.

31. The latin term for pending suit is lis pendens. The Black’s Law Dictionary27 defines lis pendens, as a Latin expression which simply refers to a “pending suit or action.” The Oxford Dictionary of Law28 defines the expression in similar terms. In the context of Section 6 of the Civil Procedure Act29 which encapsulates the principles that underpin the rule, it simply means that no court ought to proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previous instituted suit or proceeding; and or the previously instituted suit or proceedings is between the same parties; and or the suit or proceeding is pending in the same or any other court having jurisdiction to grant the reliefs claimed.278th Ed.285th Ed.29Cap 21, Laws of Kenya

32. The basic purpose and the underlying object of Section 6 is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.30 The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue." Therefore, Section 6 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical.30National Institute of Mental Health & Neuro Sciences v C. Parameshwara, (2005) 2 SCC 256.

33. The question which follows is whether the matters in issue in this case are also directly and substantially in issue in previously instituted suits. The key words in Section 6 are "the matter in issue is directly and substantially in issue in the previously instituted suit." The test for applicability of Section 6 is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. However, when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.

34. For section 6 to come into play, the matter in issue in the suits has to be directly and substantially in issue in the previous suit. As the High Court of Uganda held in Nyanza Garage vs. Attorney General:-3131HCCS No. 450 of 1993. “In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”

35. For the doctrine of sub judice to apply the following principles ought to be present:- (a) There must exist two or more suits filed consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. The uncompromising manner in which courts have consistently enforced the sub judice rule was best captured in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga,32 which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit, and that, there can be no justification in having the two cases being heard parallel to each other. Applying the tests discussed above, it is my finding that this suit sub judice.32{2013} e KLR.

36. The two issues discussed above and the conclusions arrived at effectively dispose the instant Preliminary Objection. It will suffice to conclude by stating that if this court is to retain the confidence of the nation as the final arbiter of what the Constitution means, no interpretation of the Constitution by the court can depart from the text of the Constitution and what is implied by the text and the structure of the Constitution. It is not legitimate to construe the Constitution by reference to principles or theories that find no support in the text of the Constitution. It is the text and the implications to be drawn from the text and structure that contain the meaning of the Constitution.3333{1994} 182 CLR 104 at 1 201197–198.

37. Lastly, it is my finding the Respondents’ Notice of Preliminary Objection dated 13th June 2022 succeeds. Consequently, I dismiss this suit with costs to the 1st and 2nd Respondents.

Orders accordingly.

SIGNED, DATED AND DELIVERED AT MOMBASA THIS 20TH DAY OF JUNE 2022. JOHN M. MATIVOJUDGE