[2022] KEHC 11170 (KLR)

Republic v Independent Electoral and Boundaries Commission & another; Ngigi (Exparte) (Judicial Review Miscellaneous Application E060 of 2022) [2022] KEHC 11170 (KLR) (Judicial Review) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11170 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application E060 of 2022

AK Ndung'u, J

June 17, 2022

IN THE MATTER OF SECTIONS 14, 20, 22, 23, 32, 33 AND 74 OF THE ELECTIONS ACT NO. 4 OF 2011, LAWS OF KENYA AND IN THE MATTER OF REGULATION 18 OF THE ELECTIONS (GENERAL) REGULATIONS, 2012ANDIN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORMS ACT, CHAPTER 26, LAWS OF KENYA AND IN THE MATTER OF FAIR ADMINISTRATIVE ACT, NO. 4 OF 2015, LAWS OF KENYA AND IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

Between

Republic

Applicant

and

Independent Electoral and Boundaries Commission

1st Respondent

Chairperson Independent Electoral and Boundaries Commission

2nd Respondent

and

Faith Wairimu Ngigi

Exparte

Ruling

1. By way of a Notice of Motion dated 6th June 2022, the Ex Parte Applicant (hereinafter applicant) moved this court for orders:1. Thatthe Honourable Court be pleased to grant an order of Certiorarito move into this Court for purposes of being quashed, a decision of the Respondents2. communicated in the letter dated 28th May, 2022. 3.Thatthe Honourable Court be pleased to grant an order of Mandamusto compel the Respondents to afford the ex parte Applicant a fair hearing and rectify4. the ex parte Applicant's submission of list of suppliers if need be and thereafter5. invite the ex parte Applicant for an interview to present her documents/credentials/papers at the Bomas of Kenya.6. Thatthe Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances.7. Thatthe cost of this Application be borne by the Respondents.

2. The Application is premised on the following grounds:a.Thatthe ex-parte Applicant is vying for the presidency as an independent candidate.b.Thatthe Respondents have through communication contained in a letter dated 28th May, 2022 found the ex parte Applicant's submission of list of supporters noncompliant without furnishing her with the nature of the non-compliance and or an opportunity to rectify the alleged non-compliance.c.Thatin arriving at the decision to revoke the said list of supporters, the Respondents did not adhere to the principles of good governance set out in Article 10 of the Constitution, the Applicant's right to equal protection of the law as guaranteed under Article 27 of the Constitution; the right to a fair hearing and the rights and freedoms guaranteed by the rules of natural justice.d.Thatthe Respondents have made an arbitrary decision to revoke the ex parte Applicant's compliance for submission of lists of supporters.e.Thatno notification prior notification was whatsoever issued and neither was the ex parte Applicant afforded an opportunity to be heard.f.Thatthe ex parte Applicant's constitutional rights to equal protection of the law, freedom from discrimination and from victimization, the right to access justice, the right to a fair hearing and the right to be heard as per the rules of natural justice have been greatly infringed and the ex parte Applicant has been condemned unheard.g.Thatthe Respondents have acted in blatant disregard of the law and the Constitution and its actions continue to hamper on the Applicant's constitutional rights.h.Thatthe acts of the Respondents are an affront to the principles of the Constitution, the right to a fair hearing and natural justice and that it is of utmost urgency that these illegal acts be arrested before they lead to further violation of the rights and freedoms of the Applicant and his constituents.i.Thatit is in the interest of justice that the present Application is expeditiously heard so as to enable the Applicant to exercise her constitutional right to vie for the presidency as an independent candidate.j.Thatthe process leading to the making of the decision was accentuated with secrecy and driven by ulterior political considerations in a manner that violates provisions of the law and defeats the principles of the Constitution of Kenya and the right to fair administrative action.k.Thatthe ex parte Applicant has a legitimate expectation that the Respondents shall at all times be guided by the laws of the Republic in executing their mandates and that they shall at all times be guided by the Constitution, its constitutive Act, the Fair Administrative Action Act and Regulations under these Statutes.l.Thatof the immediate concern to the ex parte Applicant in the absence of a stay, the success of this application will be rendered nugatory while at the same time expose the ex parte Applicant and the people of Kenya to violation of their fundamental rights and freedoms, right to equal benefit of the law, right to fair administrative action; and undermine the ex parte Applicants' right to vie for the presidency as an independent candidate.m.Thatit is important that the Honourable Court stays the decision of the Respondents since its effect is to undermine the fundamental rights and freedoms of the ex parte Applicant.n.Thatit is in the interest of Justice that the order sought is granted so as to protect the Constitutional foundations of the Bill of Rights, the constitutional principles and the Fair Administrative Action Act.o.Thatunless the order of leave sought is granted in the first instance and the resultant stay orders sought are granted, the ex parte Applicant will suffer irreparable loss and harm.p.Thatthe success of the Application, which is not only more than merited but also stands overwhelming chances of success, will be rendered nugatory or purely academic, without the stay orders.

3. The application is further based on other and further grounds as set out in the annexed Statement dated 3rd June, 2022 and filed in Court on 3rd June, 2022 and the Verifying Affidavit sworn on 3rd June, 2022 by Faith Wairimu Ngigi, the Ex Parte Applicant.

4. The application was met with a Preliminary Objection (PO) by the respondents on grounds:1. The present judicial review application offends the doctrine of exhaustion of remedies provided under Article 88(4)(e) of the Constitution of Kenya, section 74 of the Elections Act, Section 4(e) of the Independent Electoral and Boundaries Commission and Regulation 13 of the Rules of Procedure on Settlement of Disputes.2. The Application as drawn and presented further offends the doctrine of exhaustion of remedies as the Applicant has neither sought nor obtained leave for exemption from the requirements of section 9(4) of the Fair Administrative Action Act.3. The prayers for writs of Certiorari and Mandamus of a factual nature do not meet the threshold for invocation of a judicial review jurisdiction for grant of the reliefs sought.

5. It is common ground that the Applicant is an aspirant seeking registration to be a presidential candidate in the Republic of Kenya’s general elections slated for the 9th August 2022. She duly presented her credentials to the respondents who are mandated to conduct the registration of candidates. Among the requirements for presidential candidates was the submission of a list of supporters in line with Regulation 18 of the Elections (General) Regulations. Videa letter dated 28th May 2022, the Respondents communicated to the applicant that she did not meet the requirement for registration as a Presidential candidate in the upcoming General elections as she failed to meet the legal threshold of submission of list of supporters.

6. Aggrieved by the decision in the communication, the applicant moved this court vide the Notice of Motion dated 6th June 2022 seeking judicial orders. The motion was met with a Preliminary Objection (PO) by the Respondents as particularised above. The preliminary objection was canvassed by way of written submissions.

7. I have considered the Notice of Motion, Preliminary Objection and the learned counsel’s submissions on record. The issues for determination are:1. Whether the PO as taken meets the legal threshold for a PO.2. Whether the court has jurisdiction to entertain the motion dated 6th June 2022. 3.What orders are appropriate in the circumstances.Whether the PO meets the legal threshold for a PO.

8. The law on what constitutes a proper preliminary objection on a point of law is well settled. The locus classica on the issue is the court’s definition of a PO in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd (1969) EA 696. “So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”This was followed up by the judgment of Sir Charles Newbold in the same case:“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

9. From a cursory glance at the PO as drawn, it is quite clear that the same raises a pure point of law since the question the court will be grappling with shall be whether the Notice of Motion offends the doctrine of exhaustion of remedies under Section 9(3) of the Fair Administrative Action Act for failing to pursue the remedies provided in specific provisions of law being, Article 88(4)(e) of the constitution of Kenya, Section 74 of the Elections Act, Section 4(e) of the Independent Electoral and Boundaries commission Act and Regulation 13 of the Rules of procedure on Settlement of Disputes. The facts as pleaded are correct and in reference to the PO, no fact needs to be ascertained. The PO is also capable of disposing off the suit. Am satisfied that the PO is properly taken and meets the legal threshold required.

10. The applicant is accused of running foul of the doctrine of exhaustion. So, in essence what is the doctrine of exhaustion? The doctrine has been well explained by our courts and there is no doubt in my mind about its import and scope of application. In the case of Republic vs. Commissioner of Cooperative Development & another Ex parte Paul Manwa & Others JR Application No.52 of 2021 the court stated;“Should the Applicants have appealed to the minister before approaching this court? It is mandatory for a party to exhaust any alternative mechanism for dispute resolution before approaching the court. Section 9 of the FAAA is couched in mandatory terms. Majanja J in Misc. Civil App n.139 of 2014, Vania Investments Pool limited v Capital market Authority and Others (a decision upheld on appeal in Civil Appeal No. 92 of 2014) at para 37 stated;‘’In my view, the Tribunal ought to have been the first port of call. The applicant argues that the Tribunal is not quorate but I think there is nothing that prevented it from filing his appeal within the time provided by the Act. In the event the matter could not be dealt with the applicant would be at liberty to seek appropriate relief from this Court. Permitting the matter to proceed to substantive hearing would be to impose on the Court the mandate of the Tribunal contrary to the general principle I have cited………….

11. The Court of Appeal in The Speaker Of The NationalAssembly V The Hon James Njenga Karume,Civil Application No. 92 of 1992 delivered itself as follows in granting to the Speaker an order of stay:“In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rulescannot oust clear constitutional provisions."

12. I find it necessary to buttress the applicable principle by, again, seeking fortification of my take that a party ought to exhaust other mechanisms before recourse to the courts by reference to the Court of Appeal decision in the case of Geoffrey Muthinja & another where the court observed as follows:“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 the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. 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 of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

13. The question therefore that follows from this background is what, then, invokes the doctrine of exhaustion before embarking on the Court process. This was aptly discussed in the case of William Odhiambo Ramogi & 3others by the five judge bench as follows:“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine 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…”

14. It is thus clear beyond per adventure that a party is bound utilise alternative mechanisms available for dispute resolutions before having recourse to the Court. The dispute resolution mechanism over nomination of candidates have been well captured by the respondents in their submissions as follows:1. Article 88(4)e of the Constitution mandates the 1st Respondent to settle all electoral disputes excluding election petitions and disputes subsequent to the declaration of election results. This provision essentially grants the 1st Respondent authority to deal with all pre-electoral disputes including nomination disputes. This is echoed in Section 74 of the Elections Act which provides thus:“...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 results.”2. Additionally, Section 4(e) of the Independent Electoral and Boundaries Commission Act espouses that the 1st Respondent is mandated to handle all disputes arising from nominations. To further buttress this position, Rule 13 of the Rules of Procedure on Settlement of Disputes provides that a person aggrieved by the decision of a returning officer (in this case the 2nd Respondent) may appeal such decision to the Commission (the 1st Respondent).There thus exists an elaborate mechanism of the resolution of the dispute before court which mechanism the applicant has not activated. It is not enough to engage the 2nd respondent personally. The applicant ought to have followed the clear path set in law to resolve the dispute before coming to court.

15. Section 9(2) of the FAAAprovides that the High Court 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. As a remedy, Section 9(4) of the Act provides that the "High Court may, in exceptional circumstances and on application by the applicant, exempt such a party from the requirement. Of note here is that a party has to apply and demonstrate exceptional circumstances. The applicant has not made such an application and/or been granted exemption.

16. On the question whether insistence on procedure is inimical to the applicant’s constitutional rights, the ready answer is that requiring a party to pursue procedures anchored in law cannot by any possibility be tantamount to breach of a party’s constitutional rights. In Francis Gitau Parsimei & 2 others Vs. National Alliance Party & 4 others [20121 eKLR, the Court struck out three Consolidated Petitions seeking conservatory orders to stop the nomination of candidates. The Learned Judge noted that Article 88(4)(e) and Section 74 of the Elections Act vested the 1st Respondent the responsibility of settling disputes relating to or arising from nominations save for election petitions. The Court lacked jurisdiction to determine such disputes. In determining the matters, the court addressed itself to the need for a balance to be struck between the Bill of Rights which inter alia protects the political rights on the one hand and the recognition that political rights and the electoral process are special and needed specific forum for determination. The Hon. Justice Majanja opined:“In my view, this insistence of a specific procedure is not inconsistent with the Bill of Rights; it is recognition that election disputes require special rules for determination. These rules are justifiable in a democratic society and the Constitution itself contemplates that the electoral process is a special process. It is also my view that Article 88(4)(e) and Section 74(1) of the Elections Act, 2011 provide for alternative modes of dispute resolution specific to the nomination process. This court cannot entertain nomination disputes where such a process has not been invoked or where it has been demonstrated that the process has failed." (Emphasis added)

17. Where a court has no jurisdiction, it has no authority to adjudicate over the matter before it. As held by the Supreme Court in Samuel Kamau Macharia & Another Vs. Kenya Commercial Bank Limited & 2 Others [20121 eKLR the Court expressed itself as follows:“A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law’’.

18. In the end, I find and hold that the application before the court is improperly so and flouts section 9(2) of the Fair Administrative Action Act. The Applicant ought to have exhausted the available legal mechanisms for resolution of the dispute before resorting to the court for redress. The court is thus divested of jurisdiction and cannot therefore move a step further in the matter. For reasons stated hereinabove the preliminary objection is successful and is hereby allowed. The judicial review application is dismissed. I direct that each party bears its own costs.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JUNE 2022……………………………………………………….A. K. NDUNGUJUDGE