[2022] KEHC 17031 (KLR)

Republic v Independent Electoral and Boundaries Commission, Mombasa County Returning Officer & 4 others; Wiper Democratic Movement Party (Exparte) (Judicial Review Application E018 of 2022) [2022] KEHC 17031 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 17031 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review Application E018 of 2022

MN Mwangi, J

July 7, 2022

IN THE MATTER OF: ARTICLES 3; 10; 20; 23; 27; 38; 47; 50; 75; 159; 165(3)(b), (d)(i) & (ii), (6) and (7); 180(2); 193; 249; 258 and 259(1) & (2) of THE CONSTITUTION OF KENYA, 2020 AS READ WITH THE CIVIL PROCEDURE ACT; AND THE FAIR ADMIMISTRATION ACTIONS ACT; AND ALL OTHER ENABLING PROVISIONS OF THE LAW.

Between

Republic

Applicant

and

Independent Electoral and Boundaries Commission, Mombasa County Returning Officer

1st Respondent

Dispute Resolution Committee Independent Electoral Boundaries Commission

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Gedion Mbuvi Mike Sonko

4th Respondent

Ethics and Anti-Corruption Commission

5th Respondent

and

Wiper Democratic Movement Party

Exparte

Ruling

1. The Wiper Democratic Movement Party on 22nd June, 2022 filed a Chamber Summons dated 21st of June, 2022 under certificate of urgency under the provisions of Order 53 of the Civil Procedure Rules, First Schedule, Sections 1 & 2 of Cap 411 and Articles 10, 23, 48 and 50 of the Constitution of Kenya, 2010 and the Fair Administrative Actions Act. It seeks the following orders-i.Spent;ii.That the ex parte applicant be granted leave to apply for an order of certiorari to move into this Court for purposes of being quashed, the decision of the 2nd respondent, in complaint No. 136 of 2022; Wiper Democratic Movement vs County Returning Officer, Mombasa County And Others dated 20th June, 2022;iii.That the grant of leave to operate as stay to stop the implementation of the decision of the 2nd respondent, in complaint No. 136 of 2022; Wiper Democratic Movement vs County Returning Officer Mombasa County And Others, dated 20th June, 2022 requiring Wiper Democratic Movement Party to nominate a candidate to replace the 4th respondent as its nominee within 72 hours, pending the hearing and determination of the substantive Judicial Review Application herein;iv.That the Honourable Court be pleased, pursuant to Article 165(6) of the Constitution of Kenya, 2020 to call for the entire proceedings in Complaint No. 136 0F 2022; Wiper Democratic Movement vs County Returning Officer Mombasa County And Others;v.That pursuant to Article 23 of the Constitution of Kenya, 2010, the Court does issue an order upholding the complainant’s complaint dated 8th June, 2022 and quashing the decision of by the Committee dated 20th June, 2022;vi.That the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances; andvii.That the costs of this application be borne by the respondents.

2. The application is premised on the grounds on the face of it and on the affidavit of Ms Shakila Abdalla, the Secretary General of the Wiper Democratic Movement Party (hereinafter WDMP) sworn on 21st June, 2022.

3. The 1st and 3rd respondents filed a Notice of Preliminary Objection on 1st July, 2022. The 2nd respondent and the 1st interested party did not file responses to application. The 4th respondent supported the position taken by the WDMP.

4. Due to the urgency of the application, the Counsel for the parties made oral submissions.

5. Mr. Ochieng Oginga, the learned Counsel for the WDMP referred the Court to the decision rendered by the 2nd respondent at pages 33 to 38 of the annexures to the affidavit sworn by Ms Shakila Abdalla. He submitted that the application herein is founded on the provisions of Order 53 of the Civil Procedure Rules, Articles 10, 43 and 58 of the Constitution of Kenya and the Fair Administrative Actions Act. In making reference to paragraph 9 of the decision by the 2nd respondent, Mr. O. Oginga indicated that the said Committee said that it had already considered complaint No. 127 0f 2022 on merit and that it relied on its decision therein, yet the WDMP was not a party in the said complaint. He further stated that the 2nd respondent then proceeded to grant orders that had not been prayed for and directed WDMP to conduct nominations in 72 hours.

6. He expressed the opinion that in the substantive Motion, the Court will make a decision based on the fundamental rights and freedoms of the WDMP, as its rights under Article 47 of the Constitution as read with the Fair Administrative Actions Act were violated. He submitted that Section 38 of the Political Parties Act which was ignored governs the nomination of candidates as it is not a one off event. He explained that it involves election of delegates and the submission of names of delegates seven (7) days before nomination. He submitted that Section 38 of the said Act cannot be circumvented by the 2nd respondent which directed the exparte applicant to act against the law. He submitted that the decision has illegality and unreasonableness.

7. Mr. O. Oginga stated that no prejudice shall be suffered by any respondent if leave is not granted but the WDMP stands to suffer because its right as a political party to engage in the political elections of 9th August, 2022 will be curtailed and the right to a fair hearing will be hampered as the doors of justice will be closed to it and that the WDMP stands to suffer as it has been directed to act outside the Political Parties Act. He stated that it is trite law that an illegality remains as such. He stated that no authority was cited to support the decision of the 2nd respondent.

8. He cited the case of Felix Kiprono Mategei v Attorney General & another [2021] eKLR, at paragraph 95 where it states that a party does not need to seek leave before institution of a Judicial Review under the Fair Administrative Actions Act. He also relied on the decision in Republic v Kenya Revenue Authority Stanley Mumbo Amuti [2018] eKLR at paragraphs 35 to 40 and more specifically at paragraph 37, where the Court stated that the entrenchment of the Judicial Review as a constitutional remedy should be guided by the values of the Constitution. It was stated that judicial Review remedies are now constitutional law remedies and under Article 23 of the Constitution, leave is not required before filing Judicial Review proceedings.

9. On the issue of the Preliminary Objection filed by the 1st and 3rd respondents, Mr. O. Oginga stated that the exparte applicant herein is the WDMP as per the application and that the 1st and 3rd respondents had not elaborated on their contention that the present application is defective in form.

10. Mr. Ndaiga, learned Counsel for the 1st and 3rd respondents submitted in support of the Preliminary Objection and stated that it raises the ground that the Judicial Review application (Chamber Summons) is defective in form and substance and is bad in law as it offends Order 53 Rules 1 and 2 of the Civil Procedure Rules. He stated that the application is expressed to have been filed by the Republic prior to leave being granted and as such, it is incurably defective. He relied on the decision in the Kenya Chamber of Commerce v County Council of Makueni [2003] eKLR, where the Court held that before leave is granted, the application has to be filed in the name of the applicant. He also relied on the other authorities in their list and bundle of authorities.

11. He also cited the case of Republic v DCIO Busia District exparte Manuel Otiangala [2005] eKLR, where the Court held that failure to correctly commence Judicial Review proceedings rendered the whole application fatally defective.

12. He further submitted that the defect in the style in which the application has been commenced was not procedural but affects the substance. He was of the view that if the other prayers in the Chamber Summons are granted, it will affect the Judicial Review application as the present application is drafted in a way meant for the Court to grant substantive orders.

13. Mr. Ndaiga sought to distinguish the present application from the case of Francis Kiprono Mategei v Attorney General another (supra) which was a constitutional petition that sought the Court to render itself on whether the requirement to seek leave to institute Judicial Review proceedings is unconstitutional. He stated that in paragraph 90 of the said decision, the Court held that the petitioner had not proved that the requirement for leave was unconstitutional. He further stated that Judge W. Korir held that the grant of leave was at the discretion of the Court.

14. In reference to prayer No. 4 of the Chamber Summons, he observed that it seeks to have proceedings of the 2nd respondent called for and brought before this Court. He was of the view that the said prayer is an admission that the WDMP does not have adequate information for quashing.

15. While referring to prayer No. 3 of the Chamber Summons where the applicant prays for the grant of leave to operate as a stay, Mr. Ndaiga stated that the WDMP was given 72 hours to give the name of another candidate. He indicated that grant of leave is an equitable remedy but the WDMP had slept on its rights.

16. He submitted that paragraph 9 of the decision of the 2nd respondent must be read together with paragraphs 8 and 10 which indicate that the 2nd respondent had rendered itself in complaint No. 127 of 2022 on the same issue and it held that the issues therein were similar to complaint No. 136 of 2022. He referred to paragraph 15 of the decision in complaint in 136 of 2022 at page 37 of the WDMP’s bundle, which he said expressed the said position.

17. On the issue of the failure to consider Section 38 of the Political Parties Act, Mr. Ndaiga was of the view that there was nothing on the record before this Court to illustrate that there was an argument that was ignored or neglected.

18. He submitted that from the outset, the application by the WDMP is defective and ought to be struck out with costs but if the Court finds otherwise, it should find that the WDMP has not made out a prima facie case requiring it to be granted leave. He was of the view that if the applicant had done so, the Court would have granted leave at the exparte stage.

19. Ms Saina, learned Counsel for the 2nd respondent supported the Notice of Preliminary Objection and stated that the WDMP has to demonstrate that it has raised a serious arguable issue. She indicated that the decision rendered by the 2nd respondent on 20th June, 2022 had lapsed by effluxion of time, thus the case herein is not arguable and there would be nothing to quash and nothing to stay. She was of the view that the applicant had not demonstrated that it sought extension of time from the 2nd respondent. She prayed for the application to be dismissed.

20. Mr. Nyamu, learned Counsel for the 4th respondent submitted that the proceedings herein should be deemed as having been commenced under Article 22 of the Constitution on fundamental rights and freedoms and that under Article 22(2)(b) and (c), the WDPM has the interest to institute the proceedings as a political party. He indicated that in this instance, it had chosen the 4th respondent as its candidate under Section 38 of the Political Parties Act.

21. He stated that for proceedings brought under Article 22 of the Constitution, this Court has powers under Article 23(3)(f) of the Constitution, to issue an order for Judicial Review and as such, the Preliminary Objection filed by the 1st and 3rd respondents must fall by the wayside. He submitted that under Article 165(3) of the Constitution, this Court has jurisdiction to deal with the question of whether the rights and freedoms of the 4th respondent have been violated. He further submitted that Courts are charged with that responsibility under Articles 22, 23 and 165(3) of the Constitution. He stated that judicial authority needs to be exercised without undue regard to procedural technicalities and that the provisions of Order 53 of the Civil Procedure Rules cannot override the responsibility bestowed on Courts by the Constitution.

22. In urging this Court to consider that the Preliminary Objection would only be a clog to the administration of justice, he prayed for the protection and promotion of the purpose and principles of the Constitution.

23. Mr. Nyamu was of the view that the case of Republic v DCIO Busia District exparte Manuel Otiangala (supra) is obsolete as it sought to obstruct a party from seeking orders of Judicial Review and urged this Court to consider Articles165(3) and 159(1)(a) of the Constitution. He stated that the request by the WDMP seeking to have the file for the 2nd respondent brought before this Court did not render prayer No. 4 of the instant application defective, as nothing had been shown to be defective. He submitted that the application is specific on the issue that the WDMP wants this Court to be seized of all proceedings so that it can properly determine this matter.

24. In responding to the submission made by the Counsel for the 1st and 3rd respondents to the effect that there is nothing to quash, Mr. Nyamu cited the provisions of Article 47 as read with Articles 43 and 165 of the Constitution and submitted the decision in issue was made by a quasi–judicial body, and it can be quashed.

25. He indicated that ballot papers had not been printed and names of candidates had not been gazetted, and even if they were, they could be quashed as this Court is in control of the events. He admitted that in the application herein, there are no specific orders seeking to suspend or restrain the gazettement or printing of ballot papers for the Mombasa gubernatorial seat.

26. Mr. Nyamu relied on Articles 23(3) and 165(3) of the Constitution and the principles thereunder for protection and promotion of fundamental rights. He also relied on Article 159(2)(d) of the Constitution and prayed for justice to be administered without undue regard to procedural technicalities. He submitted that under Article 259(3)(a) of the Constitution, a Court should interpret the Constitution to see if all has been done well.

27. He prayed for this Court to grant an order under paragraph 6 of the application (Chamber Summons) to stop the printing of ballot papers for Mombasa gubernatorial seat and gazettement of candidates. To support the said request, he stated that Article 232 of the Constitution provides that public finances should be used in a prudent manner and in Article 201(d) of the said Constitution it provides for the prudent use of public resources. He stated that if ballot papers will be printed and the Court finds that the 2nd respondent was wrong, public finances will have gone to waste.

28. On the issue whether the WDPM has a prima facie case, Mr. Nyamu said that the issue before the Committee was that the 4th respondent did not provide his original degree certificate and a copy that had been certified by the issuing institution (university) as he submitted a degree certificate certified by an Advocate. Mr. Nyamu stated that the original degree certificate for the 4th respondent was delivered to the 2nd respondent at 4:22 pm. That the 4th respondent submitted the documents although his time for submission of the same was between 2:00 – 4:00 pm.

29. In making reference to paragraph 57 of the decision of the 2nd respondent, Mr. Nyamu stated that Regulation 47 applies to degree certificates obtained outside Kenya, yet the respondent’s degree was acquired at Methodist University, thus a prima facie case had been established for grant of leave to file the substantive Judicial Review application. He indicated that the 4th defendant’s disqualification was also on the basis of Article 75 of the Constitution.

30. In referring to Article 193(5)(g) of the Constitution he submitted that one would be disqualified if he was found to have acted contrary to Chapter VI of the Constitution. He indicated that the 4th respondent has not completed the appeal process, which constitutes a prima facie issue.

31. In making reference to the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, he submitted that it was held that one only needs to demonstrate that he has an arguable case so as to be granted an order for stay. He stated that the 2nd respondent applied the Wednesbury’s principles of unreasonableness in the matter that was before it.

32. Mr. Kirui, learned Counsel for the 4th respondent submitted that the case of Republic v DCIO Busia District exparte Manuel Otangala (supra), was delivered in the year 2005 before the current Constitution and the Fair Administrative Actions Act came into force, thus the authorities relied on by Mr. O. Oginga which explain why leave is not a mandatory requirement. He stated that the decision of the Kenya Chamber of Commerce v County Council of Makueni (supra) was delivered in the year 2003.

33. He submitted that in Microsoft Corporation v Mitsumi Garage Limited [2001] eKLR, it was held that the rules of procedure are handmaidens of justice and that defects that do not go to the roots of the case should not hinder the delivery of substantive justice and that in such instances the Courts should arise to their calling and do substantive justice. Mr. Kirui stated that the matter before this Court raises serious constitutional issues that cannot be wished away by a mere technicality.

34. Mr. Odhiambo, learned Counsel for the 4th respondent submitted that in Republic v IEBC & 4 others v ex parte Mike Mbuvi Sonko, Judge Mativo ruled that leave to commence Judicial Review is now not prerequisite as it has received constitutional underpinning under Article 47 of the Constitution. He stated that the Judge borrowed a leaf from the case of Mukisa Biscuit Manufacturing v West End Distributors (1969) EA 696.

35. He stated that the Notice of Preliminary Objection raised herein is not anchored on any law but it is meant to give the 1st and 3rd respondents time to go ahead to gazete the candidates. He referred to page 4 of the Nation Newspapers of 1st July, 2022, which reported that gazettement would be done on 2nd July, 2022.

36. Dr. Khaminwa SC, for the 4th respondent relied on the doctrine of de minimis non curat lex, which means that the law is not concerned with insignificant or trivial matters. He urged the Court to apply the doctrine of interpretation under Articles 259(3) of the Constitution. He relied on the African Charter of Democracy and Elections and on Dr. Willy’s Mutunga’s book on Beacons of the Judiciary transformation which speaks of democracy.

37. He stated that the precautionary principle is applied in Kenya and that gazettement of political parties’ nominees might be done on 3rd or 4th July, 2022. He prayed for the 4th respondent to be allowed to rise to the occasion like all other political aspirants.

38. In a rejoinder, Mr. O. Oginga submitted that before the year 2010, Judicial Review was construed in a narrow lens but it is now a part of Article 23 of the Constitution. He added that under Article 2, the Constitution takes precedence.

39. In making reference to paragraph 97 of the case of Felix Kiprono Mategei v Attorney General & another (supra), he submitted that the Judge said Sections 6 and 8 of the Law Reform Act and Order 53 of the Civil Procedure Rules have been rendered otiose. He stated that the order to be quashed herein is annexed at pages 37 and 38 of the proceedings (bundle of documents). He also stated that at the time of filing the present application, they had not received proceedings from the 2nd respondent.

40. In regard to the prayer for stay of the orders given by the 2nd respondent, he indicated that where an impugned decision is to be implemented, a stay order can be granted until the legality of the proceedings which form the subject of the Judicial Review are determined. He indicated that the order directing the exparte applicant to nominate another gubernatorial candidate was contrary to Section 38 of the Political Parties Act.

41. Mr. O. Oginga clarified that the two complaints before the 2nd respondent were never consolidated. He invited the Court to note that the Gazette Notice that established the 2nd respondent set the 20th June, 2022 as the last day for sitting and that was the it rendered its decision in issue at 2:00pm and gave the WDMP 72 hours for substitution of the gubernatorial candidate for Mombasa.

42. He stated that the decision was supplied to them on 21st June, 2022 at 10:42 a.m. He submitted that a prima facie case has been established and the issues raised herein call for a further hearing under the provisions of Articles 27, 47, and 50 of the Constitution, the WDMP is entitled to a fair hearing. He urged this Court to exercise its discretion judiciously.

43. Ms Lumallas for the WDMP stated that the matter before this Court is a heavy weight. She indicated that they are in Court because of complaint No. 127 of 2022 that did not involve the applicant and complaint No. 136 of 2022 which involved the applicant. She submitted that in the decision in DRC No. 136 of 2022 at paragraphs 9 and 10, there is no indication that there was a hearing given to the exparte applicant. She further submitted that the exparte applicant has a secured right under Articles 90 and 91 of the Constitution. She added that the people of Mombasa are entitled to their rights to elect a candidate of their choice.

44. In response to Mr. Ndaiga’s contention that the WDMP was indolent, Ms Lumallas stated that the present Judicial Review application was filed in Mombasa High Court but it was taken to the Nairobi High Court and that is how time was lost. She prayed for the orders sought to be granted.

45. Mr. Katisysa, learned Counsel for the WDMP stated that by looking at the exparte applicant’s application dated 21st June, 2022, it was expected that this matter would be determined expeditiously. He explained that the matter was transferred to Nairobi and then to Mombasa. He indicated that the IEBC (3rd respondent) would gazette candidates any time from 2nd July, 2022. He prayed for interim orders to be granted because if the Court eventually finds that the 4th respondent should have been gazetted, it will be a costly affair.

46. In his closing submissions, Mr. Ndaiga submitted that parties are bound by their pleadings and from the documents placed before this Court, no conservatory orders have been prayed for. He was of the view that the WDMP should have amended its pleadings between the 21st June, 2022 and 1st July, 2022 but it could not now purport to introduce new prayers from the bar as that is trial by ambush.

47. He submitted that the threshold for conservatory orders is not the same as stay orders as the Court can only stay positive orders. He indicated that the only positive orders were on the nomination of another candidate by the WDMP within 72 hours, but the applicant herein had not submitted sufficient information for the prayers it is seeking

Determination 48. In making the decision herein, I have considered the submissions made by the Counsel on record, the authorities relied on, as well as the depositions in the verifying affidavit and annexures thereto.

49. The issues for determination are-i.If the Chamber Summons dated 21st June, 2022 is fatally defective; andii.If a prima facie case has been established by the applicant, WDMP, for grant of leave to institute Judicial Review proceedings.

50. This Court will at first deal with the Notice of Preliminary Objection filed on 1st July, 2022 by the 1st and 3rd respondents. It raises the following grounds-i.That the application is incurably defective for want of form and substance and it is bad in law as it offends the provisions of the law as prescribed under Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010;ii.That the present application, being an application for leave to apply for Judicial Review orders, and being an application by a private citizen, is fatally defective as it has been expressed to be brought (sic) by the Republic as the applicant before leave has been granted yet the Republic can only be an applicant when leave has been granted;iii.That consequently, the 1st and 2nd respondents pray that the application dated 21st day of June, 2022 be struck out with costs to the respondents.

51. The three grounds above all boil down to the argument that the manner in which the Chamber Summons seeking leave to commence Judicial Review proceedings was intituled does not conform to the accepted format, as the Chamber Summons is supposed to be filed in the name of the applicant and not in the name of the Republic as is the case herein. The Counsel for the WDMP and the 4th respondent were categorical that the defect if any, is in form and not in substance as it does not affect the root of this application.

52. The Preliminary Objection raised by the 1st and 3rd respondents is meritorious as the defect is apparent on the face of the Chamber Summons. The applicant in the present application is described as the “Republic”. In Republic v County Assembly of Nakuru & 2 others Ex parte Samuel Waithuku Njane & 21 others [2017] eKLR, Judge M. Odero when faced with an application which had a defect akin to the one in the present application held as follows-“Similarly the inclusion of the ‘Republic’ as an applicant is also incorrect. The initial application seeking leave is made by the actual applicant and it is only once leave has been granted that the ‘Republic’ is enjoined at time of filing the substantive motion. Thus the objections raised by the respondent in this regard do have merit. The question then is whether the above lapses in procedure serve to render the entire application fatally defective. Article 159(d) of the Constitution of Kenya provides-(d)Justice shall be administered without undue regard to procedural technicalities”.Courts have a duty to determine the underlying issues between the parties and ought not give undue regard to infractions of procedure. Rules of procedure are to be regarded as the hand maidens rather than the mistresses of justice. In any event the interested parties will not suffer any prejudice as a result of these irregularities in the pleadings.”

53. I wish to echo the decision in the above case. The applicant in the Chamber Summons herein should have been the Wiper Democratic Movement Party. I am however in agreement with Counsel for the WDMP and the 4th respondent that the defect pointed out by Mr. Ndaiga is not fatal to the proceedings herein. The provisions of Article 159(2)(d) of the Constitution are applicable which renders the Chamber Summons not fatally defective.

54. On the issue of whether a prima facie case has been established by the applicant for grant of leave to institute Judicial Review proceedings, I will break it down to two sub-issues-a.If the applicant, Wiper Democratic Movement Party’s constitutional rights on the right to be heard were violated; andb.If the order by the Dispute Resolution Committee requiring the Wiper Democratic Movement to nominate another candidate within 72 hours was reasonable.

If the applicant, Wiper Democratic Movement Party’s constitutional rights on the right to be heard were violated 55. In the application herein, leave to institute judicial Review proceedings in the nature of certiorari was sought as provided under Order 53 Rule 1 of the Civil Procedure Rules. A party seeking leave to file Judicial Review proceedings must show that he has a prima facie case as leave in Judicial Review, is not granted automatically as a matter of course. This Court must therefore satisfy itself on the material before it without going into details, that the WDMP has established a prima facie case. Such consideration is aimed at retaining cases that are not frivolous and vexatious and permitting them to move to the stage of filing a substantive application for Judicial Review.

56. In Agutu Wycliffe Nelly vs Office of the Registrar Academic Affairs Dedan Kimathi University of Technology JKUAT [2016] eKLR when making a determination on the importance of grant of leave before filing a substantive Judicial Review matter, the Court held as follows-“The leave stage is used to identify and filter out at an early stage, claims which may be trivial or without merit. At the leave stage an applicant must show that he/she has ‘sufficient interest’ in the matter otherwise known as locus standi. In other words, the applicant must demonstrate that he/she is affected in some way by the decision being challenged. An applicant must also show that he/she has an arguable case and that the case has a reasonable chance of success. The application must be concerned with a public law matter, i.e. The action must be based on some rule of public law. The decision complained of must have been taken by a public body that is a body established by statute or otherwise exercising a public function.….Thus at the leave stage, the applicant has the burden of demonstration that the decision is illegal, unfair and irrational as discussed above. The applicant must persuade the court that the application raises a serious issue. This is a low threshold. A serious issue is demonstrated if the judge believes that the applicant has raised an arguable issue that can only be resolved by a full hearing of the judicial review application. If the court is not persuaded as aforesaid, leave will be denied and the matter proceeds no further.” (emphasis added).

57. There is a school of thought which maintains that after the Constitution of Kenya, 2010 came into force, leave to institute Judicial Review proceedings is no longer a mandatory requirement. See the decision in Felix Kiprono Matagei v Attorney General; Law Society of Kenya (supra). In this instance, leave was sought and there is therefore no need to go into an academic exercise of whether it should or if it should not have been sought.

58. The WDPM exhibited a decision rendered by the 2nd respondent in complaint No. 136 of 2022 on the 20th June, 2022 where WDPM was the complainant, the County Returning Officer, Mombasa County and the IEBC were the 1st and 2nd respondents, respectively and Mike Sonko Mbuvi and the EACC were the 1st and 2nd interested parties, respectively. In the said decision at paragraph 8 it reads as follows-“(8)After the hearing of this complaint on 15thJune, 2022, on 16thJune 2022, this committee heard another complaint filed by the 1stinterested party being DRC Complaint No. 127 of 2022: Mike Sonko Mbuvi Gideon Kioko versus Returning Officer, Mombasa County. In which the issues raised are similar if not identical to those in the complaint herein. For the record and the avoidance of doubt, Complaint No. 127 of 2022 sought for determination that the 1stinterested party herein “was duly nominated” for the position of Governor Mombasa County.(9)This Committee has already issued its decision in Complaint No. 127 of 2022. Accordingly, the Complaint herein is effectively and substantively determined. It is therefore unnecessary to proceed to the determination of the Complaint herein to its merits.10by its decision of Complaint No. 127 of 2022, this Committee ordered as follows:a)That the Complaint lacks merit and is hereby dismissed;b)The Committee upholds the decision of the Returning Officer, Mombasa County rejecting the nomination application by the Complainant [the 1st Interested Party herein]to run for the position of Governor, Mombasa County,There shall be no order as to costs” (emphasis added).

59. My understanding of the above paragraphs is that the WDMP was given an opportunity to be heard in complaint No. 136 of 2022 as borne out by paragraph 8 of the decision of 20th June, 2022, that it was heard on 15th June, 2022, and after the said hearing, the said Committee heard complaint No. 127 of 2022 and was of the view that the two complaints were similar in that they sought orders whose end result would have been the same. The 2nd respondent herein, in other words found that complaint No. 136 of 2022 was res judicata and made no determination on the said complaint on merits. It however made a detailed decision in complaint No. 127 of 2022.

60. Section 7 of the Civil Procedure Act provides as follows on the doctrine of res judicata-“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

61. The rationale for the doctrine of res judicata is to protect public interest so that a party should not endlessly be dragged into litigation over the same issue or subject matter that has otherwise been conclusively determined by a Court of competent jurisdiction.

62. In the Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR, the Court laid out the following check list in determining if a matter is res judicata-“a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

63. The Court went on to state as follows on the role of the doctrine-“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

64. The 2nd respondent herein is a quasi-judicial body guided by the law and rules of procedure. It stated that it considered the issues raised by the WDMP in complaint No. 136 of 2022 in the Dispute Resolution Committee and found them to be similar to those that had been raised by the 4th respondent herein, Mike Sonko Mbuvi Kioko, in complaint No. 127 of 2022. Although the WDPM was not a party in complaint No. 127 of 2022, the said complaint involved its nominee, Mike Sonko Mbuvi Gedion Kioko as the complainant. The substratum of the matters in issue in complaint No. 127 of 2022 complaint were similar, if not identical to the ones that were raised in complaint No. 136 of 2022.

65. In paragraph 6 of the verifying affidavit in support of the Chamber Summons herein, Ms Shakila Abdalla, the Secretary General of the WDMP deposed that the exparte applicant is dissatisfied with the decision of the Dispute Resolution Committee and the impugned decision does not contain any analysis of the complainant’s argument and in fact, the Committee proceeded to grant orders not sought for (sic) by the complainant.

66. It is my finding that the Dispute Resolution Committee (2nd respondent) explained very well in paragraphs 8 and 9 of the proceedings in complaint No. 136 of 2022, the reasons as to why it deemed it not necessary make a determination in the said matter. It needs reiterating that it found that the issues in complaint No. 136 of 2022 were similar, if not identical to those in complaint No. 127 of 2022, which had been determined. That is the reason why this Court has found that the 2nd respondent held that complaint No. 136 of 2022 was res judicata.

67. Notably, the decision in complaint No. 136 of 2022 contains a summary of the complaint and the reliefs sought, similarly, complaint No. 127 contains a summary of the complaint and the 2nd respondent in its decision considered several issues and addressed the same at length.

68. The submissions that have been made before this Court by the Counsel for the WDMP and the 4th respondent are that the WDMP was not given a hearing in complaint No. 136 of 2022. I note from the proceedings that the parties in the said matter were directed to file their written submissions and thereafter the Committee arrived at the decision it did. To my mind, I fail to see how the rights of the WDMP under the Fair Administrative Act and under Articles 22, 23, 47 and 48 of the Constitution were violated since a matter raising similar issues as those raised in complaint No. 136 of 2022 had been comprehensively determined in complaint No. 127 of 2022. It is my finding that the WDMP has failed to establish a denial or violation of its rights on the said issue at a prima facie stage.

If the order by the Dispute Resolution Committee requiring the Wiper Democratic Movement Party to nominate another candidate within 72 hours was reasonable. 69. The last sub-issue is on the alleged unreasonableness of the Dispute Resolution Committee by giving the WDMP 72 hours to nominate another candidate. Section 38E of the Political Parties Act on nomination of candidates for political parties provides as hereunder-“(1)A political party shall, not less than ten days before the date of party nominations, notify the Registrar in writing of—(a)the method it intends to use in conducting party nominations, which method shall be in accordance with the nomination rules of the political party;(b)the date of the party nominations;(c)the venue or venues for the party nominations; and(d)the list of members of the party who wish to be nominated by the party.(2)At least seven days before the date of the nominations, the—(a)political party shall publish in the official website of the political party the dates and venues of the nominations; and(b)Registrar shall publish in the Registrar’s website the dates and venues of the political party’s nominations.”

70. The WDMP and the 4th respondent challenged the orders given by 2nd respondent on 20th June, 2022 in complaint No. 136 of 2022 to the effect that it nominates an alternative candidate in place of its now disqualified nominee, the 1st interested party (in the said complaint), and that the said complainant’s nominee shall present his/her nomination papers to the County Returning Officer, Mombasa County not later than 72 hours from the date of the decision for possible clearance and registration as a candidate for the position.

71. My understanding of Section 38E of the Political Parties Act is that it applies when political parties are conducting party nominations countrywide. It is then that they are required to publish in the official website of the political parties the dates and venues of the nominations, at least seven days before the date of the said nominations. In this Court’s view, when it comes to nomination of a candidate to replace the initial nominee, the IEBC has the discretion to give shorter timelines as the subsequent nominee would still have to present his/her papers to the IEBC for approval and if not approved, another candidate may have to be nominated.

72. My finding is that having found that the issues raised in complaint No. 136 of 2022 were similar to complaint No. 127 of 2022, the 2nd respondent had to give the orders it deemed necessary to the parties. The 2nd respondent would not have left the issue of the next step the WDMP was to take open ended. I therefore conclude the said issue by saying that the 2nd respondent did not act contrary to the provisions of Section 38E(2) of the Political Parties Act by making an order giving the WDMP 72 hours to nominate another candidate to replace the 4th respondent herein for the gubernatorial elective position for Mombasa County.

73. The WDMP has therefore failed to establish a prima facie case on the issue of unreasonableness by the timeline given to the said party to nominate another candidate in 72 hours, which is equivalent to three (3) days.

74. I therefore hold that the WDMP has failed the hurdle for grant of leave for institution of Judicial Review proceedings. The Chamber Summons dated 21st June, 2022 is hereby dismissed.

75. Noting that the said application was filed on the basis that the WDMP should be given an opportunity to field a candidate of its choice for the Mombasa gubernatorial position, which is a matter of public interest to the residents of Mombasa County, each party shall bear its own costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF JULY, 2022. RULING DELIVERED THROUGH ONLINE TEAMS PLATFORM.NJOKI MWANGIJUDGEIn the presence of-Mr. Wanyama for the exparte applicant (WDMP) with Ms Lumallas,Mr. Ochieng Oginga and Mr. KatisyaDr. Khaminwa SC, for the 4th respondent, with Mr. Kirui,Mr. Odhiambo and Mr. NyamuMr. Kiprotich holding brief for Mr. Kipkogei and Mr. Mwangi for the 2nd respondent, and also holding brief for Mr. Ndaiga for the 1st and 3rd respondents.