[2017] KEHC 8988 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILINMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 300 OF 2017

IN THE MATTER OF ARTICLES 20 (1), 22, 23, 27, 38, 47, 50, 81, 87, 88, 91, 165 (3) (A) AND 258 OF THE CONSTITUTION OF KENYA 2010

IN THE MATTER OF SECTION 4 (E) OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT

IN THE MATTER OF SECTIONS 3, 4, 9 AND 11 OF THE FAIR ADMINISTRATIVE ACTION ACT

IN THE MATTER OF ODM NOMINATIONS FOR COUNTY ASSEMBLY ELECTIONS FOR WEST KARACHUONYO COUNTY ASSEMBLY WARD

AND

IN THE MATTER OF THE DECISION OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION DISPUTE RESOLUTION COMMITTEE IN COMPLAINT NO. 9 DATED 7TH JUNE 2017

BETWEEN

SAMUEL OKUTA LIETA...................................................APPLICANT

VERSUS

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION............................RESPONDENT

AND

LAWISES JUMA OTETE............................1ST INTERESTED PARTY

ORANGE DEMOCRATIC MOVEMENT.....2ND INTERESTED PARTY

JUDGEMENT

Introduction

This petition offers a classic example of to what extent candidates can go to secure their preferred party ticket to contest in the general elections scheduled for 8th August 2017. An examination of the facts presented in this petition and the Responses reveals a highly disturbing and careful well calculated attempt by the parties to undo each other "using" the legally provided forums to obtain determinations in their favour without notifying their opponents.

In my view, political party primaries ought not only to be transparent but must be transparently exercised free of any taint of electoral fraud, coercion or malpractices, and one in which party voters at plebiscites and voters at general elections can know with confidence that fair means produced a candidate.[1] Persons aspiring for elective offices must embrace systems that promote democratic values and practices that are consistent with the spirit and intent of the constitution or 'an ethical system of candidate selection.'

The evident use of legally provided dispute resolution forums to obtain favorable determinations in the absence of their opponents and without notifying their opponents reminds me of the phrase "Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks."[2]

Petitioners case

The petitioner states that he successfully participated in the primaries for the second interested party in which he sought nomination to vie for Member of County Assembly for West Karachuonyo Ward in Homa Bay County. He claims to have been issued with a certificate of nomination by the Respondent dated 29th May 2017. However, his victory was annulled by the parties county appeal tribunal on grounds of electoral malpractices. He moved to the Political Parties Dispute Tribunal against the interested parties herein and won as per the decision dated 19th May 2017. The tribunal directed the ODM party to issue him with a nomination certificate with 24 hours. The petitioner did not explain why he did not enforce the said decision though it was in his favour.

He states that he subsequently learnt about the Respondents' decision rendered on 7th June 2017 in complaint number 9of 2017 which was rendered pursuant to dispute between the interested parties herein in which the Returning officer for Homa Bay County was ordered to clear the first interested party as the second interested parties nominee for the said seat.

The petitioner avers that despite being adversely affected by the said decision, he was not notified about the proceedings nor did he participate, hence he was denied the opportunity to be heard. He states that the decision is unlawful, un procedural and unfair and asks this court to quash it.

First Interested Parties Response

On record is the first Interested Party's affidavit filed on 19th June 2017 in which he avers that he filed a complaint against the party at the political party's Tribunal being Complaint Number 178of 2017 in which a consent judgment was recorded between the interested parties herein to the effect that the second interested party would issue the first interested party with a nomination certificate.

He also denies that he was ever served with complaint number 245 of 2017 filed by the petitioner and only learnt about it in these proceedings. He avers that he objected to the petitioners nomination on the basis of the consent order referred to above. He avers that he has since been nominated by the IEBC and issued with nomination certificate. The first interested party's advocate also filed a preliminary objection citing lack of jurisdiction for this court to entertain this case.

Second Interested Party's Response

The second interested party confirmed that a consent was entered into in No. 178of 2017, and that the petitioner was not a party in the said case, hence he was not served. He also confirmed that the second interested party rendered its decision dated 7th June 2017 based on the evidence.

Petitioners Advocates Submissions

Counsel reiterated this court has jurisdiction to determine this matter and cited violation of the petitioners rights under articles 27, 47, 38 and 50 of the constitution.

Respondents Advocates Submissions

Counsel for the Respondent submitted that on 17th March 2017, the Respondent vide Gazette Notice No. 2697 notified the public that political parties intending to present candidates shall after the primaries resolve all intra party disputes and submit to it the list of the persons nominated to contest by 10th May 2017, and that section 40 of the Political Party's Act establishes a dispute resolution mechanism for determination of disputes between its members and the party or between party members while section 4 (d) of the Independent Electoral and Boundaries Commission Act[3] provides for determination of disputes arising from nominations after the party primaries. Also, section 74of the Elections Act[4] provides for resolution of disputes after the party primaries.

He further submitted that the envisaged disputes are those arising from Regulation 43 of the Elections (General) Regulations, 2012, hence, inter party disputes must not be escalated to the IEBC Dispute Resolution Committee which revolves around the conduct of the IEBC Returning officers.

Second Interested Party's Advocates Submissions

Counsel for the first interested party submitted that the petition lacks merit, that this court has no jurisdiction, and that judicial review remedies are discretionary and that the circumstances of this case militate against them.[5]

Second Interested Party's Advocates Submissions

Counsel for the second Interested Party submitted that a consent was recorded in Political Parties Disputes Tribunal Complaint No. 178 of 2017. After the second interested party failed to honour the consent, it was sued in complaint No. 9 of 2017 in which the challenged decision was made. He reiterated that the petitioner was a participant in the proceedings. He pointed out that the petitioner later filed complaint No. 245 of 2017 and failed to serve fist interested party.

He further reiterated that there are two decisions from the Political Parties Dispute Resolution Tribunal, that is, no. 178 of 2017 dated 10th May 2017 and number 245 of 2017 dated 19th May 2017 obtained ex parte. The petitioner did not challenge the first decision, which can only be challenged by way of appeal. In his submission, this petition lacks merits.[6]

On jurisdiction

Article 165 (6) of the constitution provides that "The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court." Article 165 (7) provides that "For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice."

On the scope of the jurisdiction of this court under Article 165 (6) & (7) of the constitution, I strongly opine that one of the fundamental principles in this regard is the issuing of prerogative orders in the form of writs of certiorari, mandamus and prohibition.Such writs can be availed only to stop, quash, remove, adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions. Atkin, L.J. thus summed up the law on this point in Rex v. Electricity Commissioners[7]

“Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acts in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.”

Whether the petitioner is entitled to the reliefs sought

It is important to point out that in granting a writ of certiorari the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person.[8]

The supervision of the superior court exercised through writs of ‘certiorari’ goes on two points, as has been expressed by Lord Sumner in King vs. Nat Bell Liquors Limited.[9] One is the area of inferior jurisdiction and the qualifications and conditionsof its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of ‘certiorari’ could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.

‘Certiorari’ may lie and is generally granted when a court, a tribunal or a body has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the court or tribunal or body itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances.[10]

Such writs as are referred to above are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to me that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.[11] The foregoing passage indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of ‘certiorari.’

Judicial review is concerned with whether the law has been correctly applied, and the right procedures have been followed. In order to succeed the claimant will need to show that either: A public body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so.

Broadly, in order to succeed, the applicant will need to show either:-

a. the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or

b. a decision or action that has been taken is 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it.

I have examined the relevant provisions of the law and carefully studied the challenged decision and I conclude that the first Respondents' Dispute Resolution Committee acted within its legal mandate. Needless to say that its jurisdiction has not been challenged in this petition.

I am not persuaded that the petitioner has established a case for granting of judicial review orders as sought. The mandate of IEBC to conduct nominations and resolve nomination disputes is provided for under the constitution, the Elections Act and the I.E.B.C Act. There is no allegation that the Respondent beached either the constitution or the law in the entire process.

A decision made by a quasi-judicial body or an administrative decision can only be challenged on grounds of illegality, irrationalityand procedural impropriety.A close look at the material presented before me does not demonstrate any of the above. The decision has not been shown to be illegal or ultra vires and outside the functions of the first Respondent nor has it been shown to be irrational or procedurally wrong.

The ground relied upon by the petitioner (though contested) is that he was not served with the proceedings in the challenged decision nor did he participate in the proceedings. In my view, the moment he learnt of the decision, he ought to have applied to the IEBC Dispute Resolution Committee to set it aside on grounds that he was not served.

The grant of the orders of certiorari, mandamus and prohibition is discretionary. The court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought.

The facts of this case are peculiar in that this is a situation whereby there exists two decisions rendered by the Political Parties Dispute Tribunal, .i.e. No. 178 of 2017 rendered on 10th May 2017 and No. 245 of 2017 rendered in favour of the petitioner on 19th May 2017.

Whereas the petitioner alleges that he was not served with No. 178 of 2017, there is nothing to show he served the interested parties with his case No. 245 of 2017. His case proceeded ex parte.It is my view that the parties were playing hide and seek and in such a scenario its difficult for the court to determine who among the two is telling the truth nor would the court be willing to exercise its discretion under such circumstances. Discretion cannot be exercised in favour of a party or parties who seem to be playing hide and seek and using court proceedings to gain mileage over their opponents. Such conduct, as is evident in this case disentitles a party from benefitting from the courts discretion.

My view is strengthened by the fact that the Orange Democratic Party participated in case No. 178 of 2017. Had the petitioner served the party with the court papers in case no. 245 of 2017, the party which was represented by an advocate could have detected that the case involved the same nomination and certainly would have brought this to the attention of the court because the party had also been sued in the earlier case.

This leaves me with no doubt that the petitioner did not serve the interested parties at all with his court papers and this led to his case proceeding ex parte and rendering a determination on the same matter which was the subject of No. 178 of 2017. It is also important to mention that 178 of 2017 was determiner earlier that 245 of 2017, hence by the time the petitioner obtained a decision in his favour ex parte, already there existed a decision in favour of his opponent. It has also been alleged that the petitioner or his advocate attended the hearing of 178 of 2017. This has not been seriously contested. In such a scenario, I would be reluctant to disturb the decision rendered by the IEBC Dispute Resolution Committee which determined the case before it on merits and relying on the material presented before it.

Upon due consideration of all the material before me and upon considering the arguments advanced by both sides, I find that the petitioner has not satisfied the threshold for this court to grant orders sought. The effect is that the orders sought are hereby refused and this petition is dismissed with costs to the Respondent.

Orders accordingly.

Signed, Delivered, Dated at Nairobi this 17th day of July 2017.

JOHN M. MATIVO

JUDGE

[1] Queensland Criminal Justice Commission. April 2001. The Shepherdson Inquiry: An investigation into electoral fraud. p 170. www.cjc.qld.gov.au/shepinquiry/finalreport.pdf

[2] Graham Rioba Sagwe & Others vs Fina Bank Limited & Others Pet No. 82 of 2016

[3] Act No. 9 of 2011

[4] Act No. 24 of 2011

[5] See J.R. No. 11 of 2010 Infra

[6] Counsel cited John Orwa vs IEBC & ODM, NBI High Court Misc. Civ App No. 266 of 2017 & N. S. Shah vs Juma Mwamaneno & Others MSA HC Misc Civil App No. 11 of 2010 (J.R.)

[7] 1924-1 KB 171 at p.205 (C)

[8] Per Lord Cairns in – ‘Walsall’s Overseers v. L. & N. W.Rly. Co (1879) 4 AC 30 at p. 39 (D)

[9] (1922) 2 AC 128 at p. 156 (E)

[10] See‘Halsbury, 2 nd edition, Vol. IX, page 880.

[11] See Veerappa Pillai v. Raman and Raman Ltd, AIR 1952 SC 192 at pp. 195-196 (I)