[2022] KEHC 12024 (KLR)

Republic v Returning Officer Mwea Constituency & 2 others; Macuka (Exparte) (Judicial Review 3 of 2022) [2022] KEHC 12024 (KLR) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12024 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Judicial Review 3 of 2022

RM Mwongo, J

July 1, 2022

IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI AND MANDAMUS IN RESPECT OF THE DECISION AND/OR ORDERS MADE BY THE IEBC DISPUTE RESOLUTION COMMITTEE AT NAIROBI IN COMPLAINT NO. 09 OF 2022 ON 13TH JUNE, 2022 AND IN THE MATTER OF: SECTION 8 OF THE LAW REFORM ACT, CHAPTER 26 LAWS OF KENYA AND IN THE MATTER OF: REGULATION 46 OF THE ELECTIONS (GENERAL) REGULATIONS, AND IN THE MATTER OF: SECTION 13(2) OF THE LEADERSHIP AND INTEGRITY ACT, 2012 AND IN THE MATTER OF: SECTION 74 OF THE ELECTIONS ACT, 2011 AND IN THE MATTER OF: ARTICLE 88(4) OF THE CONSTITUTION OF KENYA, 2010 AND ALL OTHER ENABLING PROVISIONS AND PROCEDURES OF THE LAW

Between

Republic

Applicant

and

Returning Officer Mwea Constituency

1st Respondent

IEBC Dispute Resolution Committee

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

and

Manases Muriithi Macuka

Exparte

Judgment

1. The applicant is an aspirant for the seat of Member of National Assembly, Mwea Constituency in the 2022 elections cycle. He presented his credentials for nomination as an independent candidate to the 1st respondent on May 31, 2022, but was turned down with the words:“Registration declined. The applicant has not met the leadership and integrity province (sic provisions), The EACC form is not duly signed and stamped pursuant to the Leadership and Integrity Act .”

2. The applicant’s core complaint is that the rejection by the retuning officer was unwarranted as the EACC form required by law to be submitted is a self-completed form which only requires to be stamped by a commissioner for oaths; and that there is no legal requirement for the form to be stamped by the EACC.

3. He argues that the requirement by the respondents that the self-declaration form should bear the EACC stamp had neither been communicated to the aspirants during the meeting held on May 20, 2022 nor was it in the candidate registration checklist provided by 3rd respondent.

4. Despite the late notification of this requirement, the applicant proceeded on the same day to Huduma Center in Kerugoya Town to have the form stamped with the EACC stamp but found their offices closed. On June 1, 2022, Huduma Centre remained closed as it was a national holiday and the applicant only managed to have the self- declaration form stamped at Huduma Center Embu, on June 2, 2022.

5. On June 2, 2022 when the applicant re-submitted his nomination papers including the self-declaration form bearing the EACC stamp to the 1st respondent, the same were rejected. The applicant filed Complaint No 9 of 2022 with the 2nd respondent IEBC Dispute Resolution Committee (DRC) but the same was dismissed vide a judgement delivered on June 13, 2022.

6. The applicant exhibited the documents he presented to the returning officer including self declaration form (MMM2); (MMM3) candidate registration check list: independent candidates’ returns; and the ruling of the IEBC DRC dated June 13, 2022 (MMM7).

7. Upon filing the complaint to the IEBC Dispute Resolution Committee (DRC), the applicant/complainant’s prayer to be cleared to vie for the seat was turned down on, inter alia the grounds that:a.The complainant’s contention that he was not aware of the requirement for stamping was rebutted by the respondent who stated that other aspirants complied.b.By the time the complainant complied the period for presentation had lapsedc.The applicant brought his predicament upon him self as he waited for the last day to present himself, yet the electoral process is a technical process governed by strict rules of procedure (on this, the committee relied on Boniface Kiarie Gitagia v IEBC [2017] eKLR)

8. The application was filed under certificate in Milimani High Court on June 23, 2022, and transferred by order of that court on June 26, 2022, for hearing in Kerugoya High Court, as the parties are in Kirinyaga County. The file was received on June 28, 2022 in this court and certified urgent. Directions were issued for the service forthwith of the substantive suit and filing of responses thereto by all respondents. In addition, due to the urgency of the matter, parties were directed to file written submissions, and appear for hearing on June 30, 2022. Parties complied, and by consent on June 30, 2022 it was agreed that the hearing do proceed by reliance on documents only, and the oral hearing was waived.

9. Counsel for the 1st – 3rd respondents relied on the replying affidavit of Charles Ndirangu Maina the returning officer (1st respondent). In essence he pointed out that Gazette Notice No 431 of January 20, 2022 provided for the dates for nomination of Members of the National Assembly as Sunday 29th May to Tuesday May 31, 2022; between 8. 00am and 1. 00pm and 2. 00pm to 4. 00pm.

10. He stated that the applicant appeared before him on May 31, 2022, and on perusal of his papers, noted that his self- declaration form under the Leadership and Integrity Act did not bear the Ethics and Anti-corruption Commission stamp, which was a requirement for him to be cleared.

11. That the said stamp is meant to show “that an aspirant has subjected himself to integrity vetting by that Commission”

12. Finally, he states that the applicant filed a complaint before the IEBC DRC which was dismissed, and he similarly seeks dismissal of the applicant’s present application.

13. The only issue to be determined herein is the propriety of the returning officer’s action and whether the IEBC DRC could properly intervene.

14. As far as the scope of the judicial review jurisdiction is concerned it is now settled that the power of judicial review is founded under theConstitution as was stated in the case ofCCK v Royal Media Services Ltd [2014] eKLR where the Supreme Court recognized that the power of judicial review emanates in the Constitution. The court there painted the clearest picture of the evolved nature of judicial review in Kenya when it found that as regards jurisdiction and remedies available that:“…the power of judicial review in Kenya is found in theConstitution. Article 23(3) grants the High Court powers to grant appropriate relief ‘including’ meaning that this is not an exhaustive list: A declaration of rights; An injunction; A conservatory order; A declaration of invalidity of any law that denies violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights; An order for compensation; An order for judicial review.”

15. In his Handbook on Judicial Review6th edition, Michael Fordham opines that:“Judicial review is the court’s way of enforcing the rule of law: ensuring that public authorities’ functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not above the law‟

16. I now analyse the matter before me as follows. As indicated by the returning officer, the election and nomination process was first notified to the public by the IEBC Chairman through Gazette Notice No 431 of January 20, 2022.

17. Gazette Notice No 431 under the Elections (General) Regulations, 2012, is titled: Election For Members of the National Assembly. It is issued by the IEBC Chairman in exercise of powers conferred by articles 88 (4), 97 (1) (a), 99, 101 of theConstitution of Kenya, sections 2, 16, 20, 24, 26, 28, 29, 30, 31, 32,33, 35, 38, 39, 43 and 74 of the Elections Act, 2011 and regulation 11(4), 12(1) and parts III and V and regulation 98 of the Election (General) Regulations. In it the Independent Electoral and Boundaries Commission gives notice, inter alia, that:“(g)Candidates intending to participate in the election as independent candidates shall not be members of any registered political party by Monday, May 2, 2022 being at least 3 months before the General Election.(h)Candidates intending to participate in this election as independent candidates shall submit their names and symbols that they intend to use during the election to the Commission on or before Monday, May 2, 2022. (i)The Commission shall publish in the Gazette, the names and symbols of persons intending to contest in the election as independent candidates at least fourteen (14) days before the nomination day being on or before Friday, May 13, 2022. (j)…….(k)The days for the nomination of political party candidates and independent candidates for the National Assembly Elections shall be between Sunday, May 29, 2022 and Tuesday, May 31, 2022. The nomination papers shall be delivered by candidates to the respective returning officers between the hours of eight O’clock in the morning and one O’clock in the afternoon and between the hours of two O’clock and four O’clock in the afternoon at the place designated by the Commission.”Notes:1. The attention of candidates andpersons subscribing nomination papers is drawn to the provisions of part III, V and IX of the Election (General) Regulations, section 13(2) and the first schedule to theLeadership and Integrity ActNo 19 of 2012 and chapter six of the Constitution of Kenya. (Emphasis added)”

18. There is no doubt that the applicant was notified that the provisions of the Leadership and Integrity Act will be in play in the nomination. Accordingly, it seems, he obtained the requisite form under section 13(2) of the Leadership and Integrity Act.

19. Section 13(2) provides as follows:“A person who wishes to be elected to a State office shall, for the purposes of this section, submit to the Independent Electoral and Boundaries Commission a self-declaration in the form set out in the first schedule. (Emphasis added).Under article 260 of the Constitution, Member of County Assembly is a state office. Thus, an aspirant is expressly required to submit such a form to the IEBC.

20. It is clear that the form under section 13(2) is for a person who wishes to be elected.Thus, the applicant properly obtained the self-declaration form in the first schedule and completed it. I have looked at the standard form in the first schedule of the Act. It clearly indicates a requirement for and leaves space for it to be sworn and stamped before a commissioner for oaths or magistrate.

21. There is no indication in the Act, however, that the self - declaration form requires to be stamped by the Ethics and Anti-Corruption Commission. So where does the requirement for the form to be stamped by the EACC emanate?

22. I have additionally, perused section 12A of the Leadership and Integrity Act. It provides as follows:“12A Self-declarationAny person intending to be appointed to a State office shall submit to the Commission a self-declaration form in the form set out in the first schedule”

23. The same self-declaration form is required to be completed by a person seeking to be appointed to a state office. Such person is expressly required to submit such form to the “Commission” which commission is referred to here?

24. “Commission” under the Leadership and Integrity Act is defined as follows in section 2(1):“Commission” means the Ethics and Anti-Corruption Commission established under the Ethics and Anti-Corruption Commission Act, 2011”

25. My understanding of these provision is that, whilst a person aspiring to be elected must submit the form to the IEBC, a person seeking be appointed to a state office is required to submit the form to the EACC.

26. The text of the statute is eminently clear, and I think that if the IEBC required, as part of the strict process of nomination, that the aspirant shall send the form to the EACC, the easiest thing would have been to clarify so in the Gazette Notice or other communication. I have not seen any other communication from the IEBC or the returning officer indicating that the applicant, as an elective aspirant, should submit the said form to the IEBC.

27. Accordingly, since the fault in making clarification lies wholly with the IEBC, the applicant cannot be faulted for presenting his form as it was though within time to the returning officer. Given that the applicant subsequently presented the duly stamped form to the returning officer, albeit on June 2, 2022, he was not responsible for the failure to have it signed, and his right to contest as an elective candidate cannot be withdrawn from him on that count.

28. The applicant’s political rights are underpinned by article 38(3)(c) of the Constitution which provides:“Every adult citizen has the right, without unreasonable restrictions —a)….c)to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office;”

29. In light of the foregoing, there was no legal basis, a priori, for the returning officer to decline to receive the applicant’s said form. Similarly, the DRC’s arguments concerning the missing stamp are not founded in any legal or expressed requirement or guideline; and the argument as to the applicant’s failure to follow the strict “technical process” of the governing electoral rules is not undergirded by any such rules.

30. Accordingly, I find and hold that the applicant was entitled to be cleared, and that the IEBC DRC had the jurisdiction to settle the dispute on nomination by making such an order.

31. I therefore grant orders 1 and 2 sought by the applicant as follows:a.An order of certiorari hereby issues to call up, remove and deliver up to this court and quash the judgment by the IEBC Dispute Resolution Committee made on June 13, 2022;b.An order of mandamus hereby issues compelling the IEBC to clear the applicant for registration for nomination to vie for the office of Member of National Assembly, Mwea Constituency.

32. The applicant shall be entitled to costs

33. Orders accordingly.

DATED AND DELIVERED AT KERUGOYA THIS 1ST DAY OF JULY, 2022HON JUSTICE RICHARD MWONGOJUDGEDelivered in the presence of:1. Kathungu for the 1st - 3rd respondents.2. Heyi holding brief for Kioko for applicant.3. Mr Murage, court assistant.