[2017] KEHC 2513 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

JUDICIAL REVIEW N0. 3 OF 2017

IN THE MATTER OF: AN APPLICATION BY DR.THUO MATHENGE FOR ORDERS OF CERTIORARI & MANDAMUS

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010 ARTICLE 47

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION, 2015

AND

IN THE MATTER OF: THE DECISION TO REVOKE THE APPLICANTS CERTIFICATE OF NOMINATION

BETWEEN

REPUBLIC ……………………………….......…………………..APPLICANT

VS

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION…..…………..…………1ST RESPONDENT

ALUISIA KANINI KIMANI…………………..………….2ND RESPONDENT

EX-PARTE APPLICANT

DR. THUO MATHENGE

RULING

1. The Applicant filed the application under a Certificate of Urgency on the 19th June, 2017 seeking leave to apply for orders of Certiorari and Mandamus and an order for stay of the revocation of the decision to revoke the ex-parte applicants Certificate of Nomination; the substantive Notice of Motion dated the 19th June, 2017 was filed pursuant to leave granted by the Honorable Court (Hon. Mr. Justice George V. Odunga) sitting in Nairobi on the same date; the ex-parte Applicant now seeks the following orders:-

(i) An order of certiorari to remove into the High Court and quash forthwith the decision of the respondents to revoke the applicants Certificate of Nomination communicated in a notice dated 15th June, 2017.

(ii) An order of mandamus to compel the 1st respondent to publish in the Kenya Gazette the applicant’s name as a gubernatorial candidate in Nyeri County for the general election scheduled to be held on 8th August, 2017.

(iii) An order of mandamus to compel the 1st respondent to ensure that the name of the applicant appears in the ballot paper for the Nyeri gubernatorial seat for the general election scheduled to be held on 8th August, 2017.

(iv) An order that the 1st respondent do issue and/or reinstate the applicants revoked Certificate of Nomination.

(v) The costs of this application be provided for.

BACKGROUND

2. On the 2nd June, 2017 the applicant was issued with a Certificate of Nomination to contest the gubernatorial seat for Nyeri County in the general elections scheduled for the 8th August, 2017;

3. On the 15th June, 2017 the applicant was notified by the Returning Officer that his Certificate of Nomination had been revoked pursuant to the decision of the 1st respondent’s Disputes Resolution Committee that was communicated vide a letter dated the 8th June 2017.

4. The applicant contends that the respondents never notified him of the existence of any complaint in regard to his candidature or eligibility to contest the governor’s office.

5. That he was not aware of any proceedings regarding his eligibility and he did not participate in any manner whatsoever in these proceedings; that the respondents denied him the right to be heard as he was never afforded an opportunity by any committee of the 1st respondent to be heard; and that no written reasons were given for the administrative actions which were in violation of Article 47 of the Constitution of Kenya 2010 (hereinafter referred to as ‘the Constitution’).

6. It is the decision to revoke the certificate of nomination which the applicant deems to be unlawful and unreasonable and procedurally unfair; and seeks that by an order of certiorari that the decsion be brought to this court and the same be quashed; and he also seeks for an order of mandamus to compel the 1st respondent (IEBC) to gazette and ensure that his name appears on the ballot paper as a candidate for the Nyeri County gubernatorial seat.

THE EX-PARTE APPLICANTS’ SUBMISSIONS

7. The applicant relies on the grounds stated on the face of the application, the Supporting and Verifying Affidavits, the Annexures and the Statutory Statement.

8. The applicant depones that on the 2/06/2017 the respondents issued him with a Certificate of Nomination which stated that he had been validly nominated to contest for the seat of Nyeri County Governor; and that he had paid the requisite fee of Kshs.50,000/-; on the 15/06/2017 the 2nd respondent notified him that vide a letter dated the 8/06/2017 the Dispute Resolution Committee had revoked his Certificate of Nomination; that he was never notified of the existence of any dispute filed before the IEBC and was never afforded any opportunity to be heard; when he enquired further he was supplied with a copy of the decision signed by Mr. Chebukati; the decision was that the applicant lacked the necessary educational qualification to stand for election as Governor;

9. The Complainant was represented by the firm of Kamotho Njomo & Co. Advocates; the ex-parte applicant who was affected by the decision was neither present nor represented; that the record does not reflect whether he was notified; the respondents had the opportunity to place before this court evidence that the applicant had been notified; there is no evidence implicit of this fact and nothing is deponed to controvert this fact;

10. The Dispute Resolution Committee outsourced the decision-making process to the Leadership and Integrity Vetting Committee; the applicant was never given an opportunity to appear before this committee; how and why the decision was reached was not availed to the applicant; the outsourcing to this committee was challenged;

11. Vide a letter dated the 15/06/2017 the applicant sought to be supplied with both the decision and proceedings of the Leadership and Integrity Vetting Committee; this letter was received and stamped by IEBC on the same date; to date he has never been supplied with the decision made by this committee; that the applicant had a right to be heard and that the respondents’ actions takes away the applicant’s fundamental right to contest a political office as provided for under Article 38 of the Constitution;

12. Counsel for the applicant divided and made submissions on the breach of the right to be heard under the three following three sub-headings;

(i)Common Law

13. Before a decision is taken the person must be accorded a right to be heard; this right is sacrosanct such that any decision rendered is a nullity in law; that this is a basic right that was also given to Adam and Eve in the garden of Eden; it is not contested nor controverted that the applicant was not heard; the fact that he was not given the right to be heard automatically nullifies the decision;

14. The authorities relied upon by the applicant are; Onyango Oloo vs AG [1986-1989] EA 456; Makondo Primary School & Others; Justice Mbogoli Msagah [2006] eKLR 15; Kalpana Rawal vs JSC [2015] eKLR;

15. That the 1st respondent’s Disputes Resolution Committee illegally, unlawfully and without jurisdiction outsourced its decision-making power to the Leadership and Integrity Vetting Committee; that this outsourcing is prohibited in administrative law as this power cannot be delegated to another commission;

(ii) Statutory Rights–under the Fair Administrative Actions Act

16. The right to be heard is anchored in statute; that prior and adequate notice must be given to a person likely to be affected by the decision; that failure to comply renders the decision unlawful;

17. That neither the applicant nor his counsel were informed of the complaint lodged by the firm of Kamotho Njomo & Company Advocates; nor was he afforded any opportunity to attend any of the sittings of the committees to be heard;

18. That the decision making process was therefore rendered illegal and unlawful for failure to comply with Sections 4(3)(a)(b)(e): 4(4)(a)(b) and (c) of the Fair Administrative Action Act;

(iii) Article 47 of the Constitution 2010

19. This Article provides that administrative action must be expeditious lawful and procedurally fair;

20. That the action by 1st respondent (IEBC) was unlawful as it was in violation of Article 47(1) of the Constitution which provides for procedural fairness; that the ingredient of fairness is extending an opportunity to a person to be heard; at Article 47(2) it provides that the decision maker must give written reasons to the person affected by the decision as to why the decision was rendered;

21. That it is the applicant’s submission that the Disputes Resolution Committee’s decision making process was faulty, unfair and unreasonable; that had he been given an opportunity he would have drawn their attention to how the Court of Appeal sitting in Nyeri had dealt with the issue of his degrees; and would have also presented the DPP’s letter and findings; that he was never given an opportunity to present these documents and stands to suffer irreparable loss and damage as a consequence of the respondent’s decision to revoke the Certificate of Nomination;

22. For those reasons the applicant urged this Honorable Court to allow the Notice of Motion dated the 19/06/2017 and to grant the prayers sought.

RESPONDENTS SUBMISSIONS

23. In response to the application the respondents filed Grounds of Opposition dated the 20/06/2017 and made oral submissions; which are as follows;

24. That the 1st respondent derived its powers and mandate to perform its functions under the provisions of Article 88 (5) of the Constitution;

25. Articles 193(1)(b) as read together with Article 180 (2) sets down the academic qualifications for elective positions; Section 22 of the Elections Act makes it a mandatory requirement that for the position of governor a candidate must be a holder of a degree from a university recognized in Kenya;

26. Two points of law arise on the lack of jurisdiction of this Honorable Court; that the decision of the Returning Officer is challengeable and can be contested before the respondent; in this instant case the decision had not been contested before this committee and that the jurisdiction of this court has been prematurely invoked; that the first port of call is the IEBC and that the applicant had not presented his grievance to the Dispute Resolution Committee of the 1st respondent;

27. Section 31(1) of the Elections Act empowers the 1st respondent to delegate its functions to committees namely the Disputes Resolution Committee (DRC) and the Leadership and Integrity Vetting Committee (LIC); that both are committees of the 1st respondent and that there is no superior committee; both are established under the same legal regime and exercise delegated authority of the 1st respondent;

28. Once the LIC had come out with a finding it was not open for the DRC to make other findings other than that which had been made by the LIC; so the DRC lacked jurisdiction to deal further with the matter; that in the determination of the DRC it does not purport to consider the complaint neither does it rely on any representations made by the complainant or any party; it did not consider the complaint it just says the decision applies;

29. No party was heard ex-parte by the DRC; as for the LIC its duty is to vet documents and only does inquiries; it doesn’t sit as a quasi-judicial body and does not conduct hearings; during its inquiries it is not obligated to call parties unless during the process it needs to garner more information.

30. The common ground is the applicant’s degree certificate; that there are two aspects that must be distinguished; the circumstances under which the certificate was acquired and the validity of the certificate; reference was made to the High Court and the Court of Appeal decisions in the casesDr. Thuo Mathenge & Anor vs Nderitu Gachagua & 2 Others [2013] eKLR; that the Court of Appeal conclusively made a finding on the validity of the certificate but directed the DPP to carry out investigations on the circumstances of acquisition and whether criminal charges ought to be preferred; that the DPP was not directed to make a finding on the validity of the certificate; and the DPP did not make a finding on the validity of the certificate; it just stated that the evidence was insufficient to institute criminal proceedings;

31. That there is no evidence tendered by the applicant that on the strength of this letter he had moved the Court of Appeal to reconsider its decision by way of review; that if the respondent were to act contrary to the judgment of the Court of Appeal it would be violating the provisions of Article 88(5) of the Constitution and it would be disobeying a court order; therefore the respondent is merely complying with the law and to do otherwise would be illegal and unconstitutional;

32. That if this court were to grant the orders sought by the applicant compelling the respondent to gazette the name of the applicant and to also place his name on the ballot box, this court would be sitting on an appeal against the order of the Court of Appeal; that jurisdiction only lies at the Supreme Court.

33. For those reasons the respondent’s prayer is that the applicants Notice of Motion be dismissed with costs.

REJOINDER

34. Counsel submitted that the orders sought are in judicial review and not a challenge to the decision of the Court of Appeal; the order sought questions the process of revoking the Certificate of Nomination issued by the respondents; the respondents issued the certificate and accepted Kshs. 50,000/- and then proceeded to revoke it;

35. The dismissal order of the Court of Appeal was as to whether or not Governor Gachagua was validly elected; the applicant had challenged the High Court decision in the Court of Appeal which then dismissed the appeal and confirmed that the governor had been validly elected; all other matters were ‘orbiter dicta’; the DPP was to investigate and it stated in its report that there was insufficient evidence; that the IEBC ought to have invited the applicant who would have tabled his degree and the investigation report and the respondent would have properly exercised its constitutional powers; all in all the decision making process was faulty;

36. That the submissions made that this application is prematurely before this court is premised on a fallacy that the decision was made by the Returning Officer; the letter dated 15/06/2017 indicates that the decision was made by the DRC and not the Returning Officer; that under the provisions of Article 165 this Honorable Court has unlimited jurisdiction and has supervisory jurisdiction over all subordinate court and advisory bodies;

37. The applicant has annexed his academic qualifications and the letter of equalization in the bundle of documents;

38. It is not disputed that the DRC and LIC are both created under the provisions of Section 31 of the Elections Act; but each has different mandates and each deals with its core business; the DRC adopted the decision of the LIC yet the complaint had been filed with the DRC therefore the DRC was the only committee which could determine this issue.

39. It was rationalized that the LIC does not hear anyone and that it is not a quasi-judicial body; but it makes decisions that affect the rights of others; its decision has locked out the applicant; a body that has that kind of power must hear persons before decisions are taken;

ISSUES FOR DETERMINATION

40. After hearing the rival presentations made by both Counsels for the respective parties this court has framed the following issues for determination;

(i) Whether the application herein was premature as the Applicant had not exhausted the dispute resolution mechanisms provided for by statute;

(ii) Whether the IEBC’S decision to revoke the applicants Certificate of Nomination was illegal.

ANALYSIS

Whether the application herein is premature

41. Section 74 of the Election Act bestows on the IEBC the right to resolve disputes; that section reads as follows;

“Pursuant to Article 88 (4) (e) of the Constitution, the commission shall be responsible for the settlement of electoral disputes, including disputes relating or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”

42. The respondents objection was that the ex-parte applicant failed to follow this procedure; instead of first directing his complaint to the committee of the IEBC in accordance with the law, the applicant instead proceeded to institute judicial review proceedings in the High Court being this instant application; it was the respondents contention that these proceedings were premature and should therefore be dismissed;

43. This court states that judicial review proceedings are discretionary and should only be issued where there is no other alternative remedy that is more efficient or suitable; in essence, although the availability of other remedies is no bar to seeking the judicial review remedies, it should however be sought as a matter of last resort.

44. In the case of Shah vs Attorney General [1970] EA 543the court addressed this issue as follows;

“Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy (emphasis mine).”

45. In defining and enunciating the scope of the order of mandamus, the Court of Appeal in Kenya National Examination Council vs Republic exparte Gathenji Njoroge & 9 others [1977] eKLRrelied on an extract from Halsbury’s Law of England, 4th Edition Volume 1 at page 111 at paragraph 90 headed “the mandate” it states;

“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leave discretion to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way”

46. The court then held;

“What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed’.

47. In this instance the applicant alleges that the respondents made adverse orders against him and that he was not a party to the proceedings which was against the rules of fairness and natural justice; and contends that pursuant to Article 165 (6) of the Constitution this court has a duty to determine whether this body acted properly and within its powers;

48. This court reiterates that judicial review remedies are discretionary and the discretion of the court must be exercised judicially on the basis of evidence and sound legal principles;

49. Section 107 of the Evidence Act provides;

“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.”

50. This court states that for an order of mandamus to issue the applicant must demonstrate that the respondent had failed to perform its statutory duty to the detriment of the party who has a legal right to expect the duty to be performed;

51. It is not disputed that no party was afforded an opportunity by any of the 1st respondents committees, namely, the Dispute Resolution Committee and/or the Leadership and Integrity Vetting Committee, to be heard; and it is also not in dispute that the DRC did not purport to consider the complaint but simply adopted the verdict of this latter committee by stating that the decision applies; this being the case it is this courts considered view that since no party had been heard and there being no ownership of the decision by the Dispute Resolution Committee that the applicant ought therefore to have taken advantage of this gap and filed his formal complaint, presented his documents and drawn the respondents attention to how the Court of Appeal sitting in Nyeri had dealt with the issue of his degrees; and the DPP’s letter and findings on the insufficiency of evidence; this was not the case;

52. Section 74 of the Elections Act mandates the IEBC to resolve disputes relating to the nomination process; and bestows a right upon the applicant to lodge his complaint thereat; it is this courts considered view that the applicant being aggrieved by the respondents decision ought to have referred his complaint to the first port of call as provided by Section 74 of the Elections Act;

53. The facts as presented are that the applicant picked the letter of revocation from the Returning Officer and thereafter wrote a letter requesting the IEBC to provide him with the decision, the proceedings and further requested it to recall the revocation;

54. There is no evidence placed before this court by the applicant to demonstrate that he had lodged a complaint with the IEBC relating to the revoked Certificate of Nomination; there is also no evidence to demonstrate that the respondent failed to give him a Complaint Form and further failed to allocate him with a case number; and that the respondent failed to give him audience in the form of a hearing relating to the revoked Certificate of Nomination;

55. In summary, there is no evidence that the respondent had failed to perform its statutory duty to the detriment of the applicant who had a legal right to expect the duty to be performed;

56. Lastly the applicant must also demonstrate that there was no more appropriate remedy and that he had exhausted the available dispute resolution mechanisms before lodging his application before this court; this court makes reference to the case of Republic vs Susan Kihika & 2 Others Exparte George Mwaura Njenga [2014] eKLR;where the jurisdiction of the court was challenged by the Respondents as the dispute resolution mechanism set out in the Political Parties Act had not been fully exhausted; this court upheld the Preliminary Objection and struck out the application for having been brought prematurely.

57. The applicant being aggrieved by the Committees’ decision in revoking his Certificate of Nomination should have first utilized and exhausted the statutory mandated process of the respondents’ Dispute Resolution Committee before filing the instant application; again this court reiterates the applicant provided no evidence of a formal complaint and that consequential to having lodged this complaint the respondent denied him audience and or failed to make a determination thereto; this was not the case;

58. In the light of the above this ground of opposition is found to be meritorious and it is hereby allowed.

Whether the respondents decision to revoke the Certificate of Nomination was illegal

59. At this juncture this court having found that the applicant had not exhausted the dispute resolution mechanisms provided by statute and the application as being premature; it therefore follows that this court has no jurisdiction to entertain the application any further and must therefore down its tools; this court will therefore not belabour itself in addressing this issue.

FINDINGS AND DETERMINATION

60. For the reasons stated above this court makes the following findings;

(i) This court finds that this is not a suitable case in which this court should exercise its discretion in granting the orders sought by the ex-parte applicant; the proper forum and the first port of call ought to have been the 1st respondents Disputes Resolution Committee;

(ii) Accordingly, the applicants Notice of Motion dated 19th June, 2017 seeking the orders of certiorari and mandamus is found to be premature and is hereby struck out.

(iii) Each party shall bear their own costs.

Orders accordingly.

Dated, Signed and Delivered at Nyeri this 20th day July, 2017.

HON.A.MSHILA

JUDGE