[2022] KEHC 9818 (KLR)

Republic v Independent Electoral and Boundaries Commission & 4 others; Mongare (Exparte) (Judicial Review Application E004 of 2022) [2022] KEHC 9818 (KLR) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9818 (KLR)

Republic of Kenya

In the High Court at Nyamira

Judicial Review Application E004 of 2022

FA Ochieng, J

July 18, 2022

IN THE MATTER OF: ARTICLES 23, 47, 50, AND 88 OF THE CONSTITUTION OF KENYA, 2010. -AND- IN THE MATTER OF: AN APPLICATION FOR LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS -AND- IN THE MATTER OF: ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010 -AND- IN THE MATTER OF: SECTION 43(5) AND 74 OF THE ELECTIONS ACT -AND- IN THE MATTER OF: SECTIONS 13 (C) AND 20 (2) OF THE ELECTION OFFENCES ACT

Between

Republic

Applicant

and

Independent Electoral and Boundaries Commission

1st Respondent

Ruttoh Kipyegon Wesley - Returning Officer, North Mugirango Constituency

2nd Respondent

Eric Omanwa Basweti

3rd Respondent

Attorney General

4th Respondent

Eliud Kinuthia - Chairperson, National Police Service Commission

5th Respondent

and

Shukin Oonge Mongare

Exparte

Urgent need to formulate appropriate legislation specifying the deadline by which complaints and appeals could be filed in the Independent Electoral and Boundaries Commission

The applicant filed the instant application challenging the nomination of the 3rd respondent to vie for a member of County Assembly position on the ground that the 3rd respondent had not resigned from the National Police Service within the required 6 months prior to the elections. The court pointed out that the constitutional mandate of the Independent Electoral and Boundaries Commission (IEBC) did not include the process of authenticating certificates or other documents presented by persons seeking to be registered as candidates in an election. The court also stated that there was an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals, if any, could be brought to the IEBC.

Reported by Kakai Toili

Constitutional Law- constitutional commissions - Independent Electoral and Boundaries Commission (IEBC) - mandate of the IEBC - whether it was the mandate of the IEBC to authenticate certificates or other documents presented by persons seeking to be registered as candidates in an election - whether where there was evidence that proved an aspirant was not eligible to be registered as a candidate, that aspirant could be allowed to vie simply because the evidence had not been available earlier.

Brief facts The 3rd respondent was an employee of the National Police Service prior to deciding to run for political office. The applicant contended that the applicant was in breach of section 43(5) of the Elections Act which provided that a public officer who had intentions to contest an election was obliged to resign at least 6 months before seeking elective office as he did not resign 6 months ahead of the elections scheduled for August 9, 2022. The 3rd respondent claimed that the application was res judicata, as the issues it raised had been raised earlier in the appeal Shukin Oonge Mongare v Eric Omanwa Basweti & 3 Others Hcc No. EPA 004 of 2022. The 3rd respondent further contended that the applicant had used the wrong procedure when he moved the court by way of judicial review instead of an appeal.The applicant sought among others; an order of certiorari to quash the decision of the 1st respondent (IEBC) neglecting/refusing to hear and determine the complaints by the applicant against the 3rd respondent’s nomination to contest for the election of Member of County Assembly for Bomwagamo Ward in North Mugirango Constituency within Nyamira County contained in the letter to the chairperson of the IEBC dated July 02, 2022; and the complaint dated July 01, 2022. The applicant also sought an order of mandamus to compel the IEBC to hear and determine the applicant’s complaints against the 3rd respondent’s nomination.

Issues

Whether it was the mandate of the Independent Electoral and Boundaries Commission to authenticate certificates or other documents presented by persons seeking to be registered as candidates in an election.

Whether where there was evidence that proved an aspirant was not eligible to be registered as a candidate, that aspirant could be allowed to vie on the strength that the evidence had not been available earlier.

Held

The court in Shukin Oonge Mongare v Eric Omanwa Basweti & 3 Others did not render a substantive decision on the issues which had been placed before it. Accordingly, the issue concerning the date when the 3rd respondent resigned from public service, had not been determined by any court of competent jurisdiction. After the court held that it lacked jurisdiction to handle the appeal; and when it had intimated that such matters could only be entertained if brought through judicial review, it would be a mockery to slam the door in the face of the ex parte applicant when he had done as was advised.

The IEBC did not have the letters dated June 23, 2022 and June 29, 2022, at the time when it made the decision to register the 3rd respondent as a candidate. Therefore, at that time, the IEBC could not be said to have erred when it registered the 3rd respondent.

The constitutional mandate of the IEBC did not include the process of authenticating certificates or other documents presented by persons seeking to be registered as candidates in an election. It would be a logistical nightmare to require the IEBC to conduct forensic examination of the documents presented by aspirants. However, the applicant had filed a new complaint, which was backed by new evidence. The IEBC could not refuse to give a hearing to the applicant. In arriving at that decision, the court was not sitting in an appellate capacity.

There was no substantive decision by the IEBC, on the complaint dated July 1, 2022. It was the mandate of the IEBC to hear and determine pre-election disputes. It could not therefore refuse to undertake its statutory obligation. Insofar as the IEBC declined to give a hearing to the ex parte applicant, it abdicated its responsibility. The date for the elections was just around the corner. However, the matter at hand would not require a lengthy hearing. The IEBC should have been able to hear the complaint, and make a determination within hours, at most.

There was an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals, if any, could be brought. In the current cycle of elections, numerous appeals were being filed even though there were less than 30 days to the date of elections. When the IEBC was expected to make proper arrangements for the elections, it should have sufficient time and opportunity to finalize preparations.

One of the key issues that needed clarity and certainty was the identity of the candidates. When disputes continued to linger as to whether or not an aspirant should or should not be a candidate, the IEBC could not cause ballot papers to be printed. The delay could jeopardize the elections. On the other hand, there was a need to accord a fair hearing to persons who had complaints.

All stakeholders needed to take stock, after the 2022 general elections, to discuss and formulate rules or regulations, or even statutory amendments that would strike an appropriate balance between the need to grant hearings and the need to bring to an end any cases, early enough, so that the IEBC could have sufficient time to make proper preparations for the elections.

If a person was able to provide evidence that proved that an aspirant was not eligible to be registered as a candidate, the IEBC or Kenyans would not allow that aspirant to vie simply because the evidence had not been available earlier.

Application allowed.

Orders

An order of mandamus directed at the 1st respondent was issued directing it to hear and determine the ex parte applicant’s complaint dated July 1, 2022.

Each party to bear its own costs.

Citations Cases Mongare v Basweti & 3 others (Civil Appeal EPA 004 of 2022; [2022] KEHC 9849 (KLR)) — Explained

Statutes Constitution of Kenya, 2010 — Article 165 (3)(6); Chapter 6 — Interpreted

Elections Act — Section 43(5) — Interpreted

Political Parties Act, 2011 (Act No. 11 of 2011) — In general — Cited

AdvocatesNone mentioned

Judgment

1. The court was moved by Shukin Oonge Mongare, who is seeking the following judicial review orders;“1. That an order of certiorarido issue to remove to this Honourable Court for purposes of being quashed, the decision of the 1strespondent neglecting/refusing to hear and determine the Complaints by the applicant against the 3rd respondent’s nomination to contest for the election of Member of County Assembly fo Bomwagamo Ward in North Mugirango Constituency within Nyamira County contained in the letter to the Chairperson of the 1st respondent dated July 02, 2022; and the Complaint dated July 01, 2022. 2.That an order of mandamus do issue compelling the 1st respondent to hear and determine the applicant’s complaints against the 3rd respondent’s nomination to contest for the election of Member of County Assembly for Bomwagamo Ward in North Mugirango Constituency within Nyamira County contained in the letter to the Chairperson of the 1st respondent dated July 02, 2022; and the Complaint dated July 01, 2022. 3.That as an alternative to the order in (2) above, having found that the 3rd respondent did not meet the legal requirements to contest for the seat of Member of County Assembly, an order of mandamus do issue compelling the 1st respondent to strike off the name of the 3rdrespondent from the list of candidates cleared to contest for the election of Member of County Assembly for Bomwagamo Ward in North Mugirango Constituency within Nyamira County; and to reprint the ballot papers for the seat of Member of County Assembly for Bumwagamo Ward in North Mugirango Constituency within Nyamira County if already printed.”

2. The issue at stake is the eligibility of the 3rd respondent as a candidate.

3. The 3rd respondent was an employee of the National Police Service prior to deciding to run for political office.

4. Pursuant to the provisions of section 43(5) of the Elections Act, a public officer who had intentions to contest an election is obliged to resign at least 6 months before seeking elective office.

5. It was the contention of the ex parte applicant that the 3rd respondent was in breach of that statutory provision, because he did not resign 6 months ahead of the elections scheduled for August 9, 2022.

6. The 3rd respondent told this court that the application herein was res judicata, as the issues it is raising had been raised earlier in the appeal Shukin Oonge Mongare v Eric Omanwa Basweti & 3 others Hcc No EPA 004 of 2022.

7. It is common ground that in the said appeal, the ex parte applicant herein had faulted the IEBC Dispute Resolution Committee for its failure to consider that the 3rd respondent herein did not resign on or before February 9, 2022.

8. The 3rd respondent further contended that the applicant herein had used the wrong procedure when he moved this court by way of judicial review instead of an appeal, as envisaged under the Political Parties Act.

9. The 3rd respondent believes that this court is functus officio, as the High Court had already rendered itself in the appeal.

10. I have carefully perused the judgment which was delivered by the Hon Justice J Mulwa on June 30, 2022.

11. The learned judge upheld the preliminary objection which had been raised by the 2nd respondent. By the said preliminary objection, it had been asserted that the High Court lacked jurisdiction.

12. The court pronounced itself in the manner following;“14. From the above authorities, it is evident that there is consensus that the High Court cannot exercise its appellate jurisdiction over the decisions of the IEBC Dispute Resolution Committee. The court can only entertain such matters when sitting as a judicial review court, or in exercise of its supervisory jurisdiction under article 165 (3) and (6) of the Constitution. In the premises, I find that this court has no jurisdiction to hear and determine the appellant’s appeal.”

13. On account of that finding, the court downed its tools in respect of the entire appeal, and struck it out because it had been ”incompetently filed before this court.”

14. In the light of the foregoing, it is evident that the High Court did not render a substantive decision on the issues which had been placed before it. Accordingly, the issue concerning the date when the 3rd respondent resigned from public service, had not been determined by any court of competent jurisdiction.

15. Secondly, it is noteworthy that it was the 1st respondent herein who had invited the High Court to find that it lacked jurisdiction.

16. Surely, after the High Court held that it lacked jurisdiction to handle the appeal; and when the said court had intimated that such matters could only be entertained if brought through Judicial Review, it would be a mockery to slam the door in the face of the exparte applicant when he had done as was advised.

17. The 1st respondent did not have the letters dated June 23, 2022 and June 29, 2022, at the time when it made the decision to register the 3rd respondent as a candidate.

18. Therefore, at that time, the 1st respondent cannot be said to have erred when it registered the 3rd respondent.

19. However, as Mulwa J observed in her judgment dated June 30, 2022;“…….. the said new evidence, though, in my view is very crucial in the fair determination of the 1st respondent’s qualification for nomination as the MCA for Bomwagamo Ward in North Mugirango Constituency ……..”

20. I appreciate the fact that the constitutional mandate of the IEBC does not include the process of authenticating certificates or other documents presented by persons seeking to be registered as candidates in an election.

21. The ex parte applicant had not suggested that the IEBC should have conducted a forensic examination of the documents which the 3rd respondent had presented before the commission.

22. Indeed, it would definitely be a logistical nightmare to require the commission to conduct forensic examination of the documents presented by aspirants.

23. However, the applicant has filed a new complaint, which is backed by new evidence.

24. In my considered view, the commission cannot refuse to give a hearing to the applicant.

25. In arriving at this decision, I am not sitting in an appellate capacity.

26. There is yet no substantive decision by the commission, on the complaint dated 1st July 2022.

27. It is the mandate of the Commission to hear and determine pre-election disputes. It cannot therefore refuse to undertake its statutory obligation.

28. Insofar as the commission declined to give a hearing to the exparte applicant, I find that it abdicated its responsibility.

29. I therefore issue an order of mandamus, directed at the 1st respondent, directing it to hear and determine the ex parte applicant’s complaint dated July 1, 2022.

30. I am fully alive to the fact that the date for the elections is just around the corner. However, I believe that the matter at hand would not require a lengthy hearing.

31. The commission should be able to hear the complaint, and make a determination within hours, at most.

32. Meanwhile, I deem it necessary to make an observation regarding the pre-election dispute resolution mechanisms. It strikes me that there is an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals, if any, may be brought.

33. In the current cycle of elections, numerous appeals were still being filed even though there is less than 30 days to the date of elections.

34. Obviously, when the IEBC is expected to make proper arrangements for the elections, it must have sufficient time and opportunity to finalize preparations.

35. One of the key issues that needs clarity and certainty is the identity of the candidates. When disputes continue to linger as to whether or not an aspirant should or should not be a candidate, the IEBC cannot cause ballot papers to be printed.

36. The delay could jeopardize the elections.

37. On the other hand, I appreciate that there was a need to accord a fair hearing to persons who have complaints.

38. Accordingly, I would suggest that all stakeholders need to take stock, after the 2022 General Elections, to discuss and formulate rules or regulations, or even statutory amendments that will strike an appropriate balance between the need to grant hearings and the need to bring to an end any cases, early enough, so that the commission can have sufficient time to make proper preparations for the elections.

39. As regards the costs of the judicial review application herein, I order that each party will meet his or her own costs. I so order because I deem the issue raised to be one of great public interest.

40. I do not think that if a person is able to provide evidence that proves that an aspirant is not eligible to be registered as a candidate, the IEBC or Kenyans would allow that aspirant to vie simply because the evidence had not been available earlier. If we love our country Kenya, we must strive to ensure that the values espoused in chapter 6 of the Constitution become a lived reality.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 18TH DAY OF JULY, 2022FRED A. OCHIENGJUDGE