[2022] KEHC 3289 (KLR)

Sandi v Constituency & another (Petition E008 of 2022) [2022] KEHC 3289 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3289 (KLR)

Republic of Kenya

In the High Court at Meru

Petition E008 of 2022

EM Muriithi, J

July 8, 2022

N THE MATTER OF THE CONTRAVENTION OF ARTICLES 1, 3, 10, 19, 20, 22, 23, 25, 27, 38, 47, 48, 159(2)(d), 193(1)(c)(ii) AND 259 OF THE CONSTITUTION AND IN THE MATTER OF ELECTION (GENERAL REGULATIONS, 2012)

Between

Hillary Mutuma Mugambi alias Hillary Sandi

Petitioner

and

Returning Officer, North Imenti Constituency

1st Respondent

Independent Electoral & Boundaries Commission

2nd Respondent

Judgment

1. The petitioner who seeks to contest for ward elections in the forthcoming August 9 General elections filed a petition dated 28/6/2022 praying for specific relief as follows:a.That an order of injunction do issue barring the 1st and 2nd respondents from proceeding with the preparations of printing ballot papers until petitioner/applicant is duly cleared as a candidate.b.A declaration do issue that the respondents violated Articles 3, 10, 24, 27, 38, 47, 48 and 85 of the Constitution of Kenya of Kenya.c.A declaration do issue that the petitioner has satisfied the threshold under article 85 of the Constitution of Kenya and is therefore qualified to be cleared to vie as independent candidate for Nyaki West Ward in the forthcoming 9th August General election.d.An order of certiorari do issue to the High Court and quash the decision of the 2nd respondent’s dispute resolution committee dated June 17, 2022. e.The respondents be compelled to issue the petitioner with a nomination certificate and to include his name in the ballot paper for the forthcoming 9th August general election.f.Costs of this petition be awarded to the petitioner.g.Any other relief that this Court may deem fit in the circumstances.

The Petitioner’s case 2. On 21st day of April 2022, the petitioner applied to the office of registrar of political parties, for clearance as an independent candidate and certification of symbol to be used in the August general elections. On 28th day of April 2022, the petitioner, who was then hospitalized at Meru Teaching and Referral hospital, authorized one Kevin Jones Thuranira to collect clearance letters from the office of the registrar of political parties and submit them to the 2nd respondent. On 30th of April 2022, the petitioner received a WhatsApp message from the said Kevin Jones Thuranira notifying him that the said letters had been collected and submitted at the 2nd respondent’s office. The petitioner presented himself to the office of the 1st respondent where his nomination status was checked and upon verification, he was given nomination documents to wit Form 18-nomination paper for election of county assembly; Form 19- statutory declaration for purposes of Nomination for Parliamentary and County elections; the electoral code of conduct declaration by political parties, candidates and candidate’s agents; a form stating requirements for the candidates; and two forms of supporters of independent candidate for election of member of county assembly for collection of 500 signatures each. Among the numerous email and cell phone correspondences received by the petitioner from the office of the 2nd respondent was an email of 17/5/2022 at 10. 39 a.m with an attached form that the petitioner was supposed to fill upon collection of signatures of his supporters. On 15/5/2022, the petitioner was notified by the 1st respondent via a text message of the postponement of a meeting that was to be on 16/5/2022. On 18/5/2022, the petitioner was once again invited through a text message, by a staff working at the 1st respondent’s office namely Eric, to attend a meeting, at Kaaga MCK Methodist Church Hall at 8. 30 am, of all gazetted independent candidates. On the evening of 18/5/2022, the petitioner learnt with utter shock and disbelief from a WhatsApp group that his name was missing in a gazette notice published by the 2nd respondent, despite having complied with all required procedures. When he attended the aforementioned meeting at Kaaga Methodist Church on 19/5/2022, he approached the said Eric who assured him that he was among the aspirants listed in the gazette notice. The petitioner accompanied his personal assistant namely Silas Karani to verify his voter registration status, and out of sheer caution, he decided to verify his candidature status, when he was astonished to learn that his symbol and name were not on the list of gazetted candidates. This prompted the petitioner to lodge a complaint at the 2nd respondent’s registry on 20/5/2022. The petitioner avers that despite the dispute resolution committee’s jurisdiction being time bound and despite the complaint having been lodged on 20/5/2022, the said committee failed, neglected and/or refused to hear the dispute thereby prompting him to file Meru High Court Petition 4 of 2022, but vide a consent between the advocates, the petition was withdrawn and it was agreed that the petitioner would submit his nomination papers to the 1st respondent. On 2/6/2022, the petitioner submitted his nomination papers only to be rejected for the reason that he was not gazetted. The petitioner proceeded to lodge another complaint with the 2nd respondent’s dispute resolution committee, but that complaint was dismissed vide a judgment dated 17/6/2022, on the ground that although the petitioner was constitutionally and statutory compliant, he had failed to inform the commission of his intention to vie. The petitioner avers that by finding him to be constitutionally and statutory compliant to vie for the position of member of county assembly and subsequently refusing to clear him for the general election on a technicality, the respondents violated his rights as envisioned under articles 24, 27, 38 and 159(2)(d) of the Constitution . The petitioner further avers that in leading him into believing that he was a qualified candidate and asking him to collect signatures and then ultimately via caprice refusing to gazette him, the respondents violated the values and principles of accountability and legitimate expectation as laid down under article 10 of the Constitution . The petitioner avers that the judgment by the 2nd respondent’s dispute resolution committee was biased and a violation of his right to fair administrative action.

The respondents’ case 3. The respondents opposed the petition through their replying affidavit sworn on 1/7/2022 by Karen Wachera Mwangi, the 1st respondent herein. She avers that the petitioner had prior to filing this instant petition instituted Meru HC Petition No E004/2022 which he withdrew upon being confronted with a preliminary objection challenging the jurisdiction of the court. Thereafter, the petitioner filed complaint No 66 of 2022 before the Independent Electoral and Boundaries Commission Dispute Committee, which was dismissed on 17/5/2022. The petitioner appeared before the North Imenti Constituency office with an unstamped nomination certificate which he alleged was obtained from the office of the Registrar of Political Parties, but she informed him that his name was not gazetted and thus he was not eligible for clearance. She avers that she duly endorsed on the petitioner’s papers the ground upon which she declined to clear him. It is patently clear from the petitioner’s pleadings that he did not submit to the 1st respondent the name and symbol that he intended to use during the upcoming general election in compliance with the provisions of section 33(1) of the Elections Act. She avers that the petitioner failed to file with the 2nd respondent a clearance certificate from the registrar of political parties and intention to contest in the prescribed form 11N as required by regulation 15 of the Elections (General) Regulations 2012, and in view of the said non-compliance, the petitioner’s name could not have been gazetted by the 2nd respondent. She feels that the petitioner’s grievances against the respondents are misplaced, as the petitioner was the author of his own misfortunes. She equates the petitioner’s prayers in the petition to being accorded preferential treatment by being excused from compliance with the law. She avers that since the petitioner was all along aware that he was under a duty to submit his name and symbol to the 1st respondent on or before 2/5/2022 which he did not, his petition ought to be dismissed with costs. She avers that if the petitioner’s agent dropped the petitioner’s documents with the security guards at the ground floor of Anniversary Towers Building, the said guards cannot be deemed to be officers of the 2nd respondent, and since the said building houses officers of other organizations, it would be extremely absurd for anyone to drop documents with the guards and conceive that to be submission of the documents to the 2nd respondent. She avers that the petitioner has not demonstrated any violation of rights or freedom as enshrined in the Constitution , and thus the petition lacks specificity.

4. The petitioner filed a supplementary affidavit sworn by him on 1/7/2022. He avers that the fact that the respondents contacted him in all the communications can only be construed to mean that they obtained his contacts from Form 11N. He avers that he has suffered prejudice from the unlawful, unwarranted and unjustified actions of the respondents who conspired to defeat the sacrosanct right guaranteed under article 38 of the Constitution , and he does not see how allowing the petition will impede the respondents’ preparedness in conducting the general elections. He avers that his agent was asked to leave documents at the ground floor of Anniversary Towers building where the submission of the said documents was taking place, and he urged the court to allow his petition and uphold his rights under article 38 of the Constitution .

5. The matter was directed to be canvassed by way of written submissions which were duly filed and oral highlighting thereof on 4/7/2022.

The petitioner’s submissions 6. The petitioner urged that he submitted all the clearance documents to the 2nd respondent and that is why he was prequalified for nomination, issued with nomination documents and looped in all communication regarding pre-qualified candidates. He submitted that an agent could submit documents on his behalf as was held in Timothy S Maneno v Returning Officer, Kibwezi West, Nguu/Masumba Ward & 2 others (2021) eKLR. He submitted that the actions of the 1st respondent in issuing nomination papers and addressing him as a gazetted candidate in all the correspondences created a legitimate expectation that they would not reject the very documents they had given him, and he buttressed that argument with the Supreme Court case of Communications Commission of Kenya & 5 others v Royal Media Services & 5 others (2015) eKLR. He submitted that since he submitted his documents through an agent owing to his illness and further being issued with nomination papers, which was a preserve for prequalified candidates and the communications from the 1st respondent, a legitimate expectation was created that he would be cleared by the 1st respondent and issued with a clearance certificate. He submitted that the commission fell well below the test of proportionality, when it held that he was constitutionally and statutory compliant but went ahead to dismiss his complaint, and supported that argument with Suleiman v Amboseli Resort Limited (2004)eKLR. He submitted that since he complied with the Constitution of Kenya and the statute, he should not be unreasonably restricted from vying for elections, as was held by Lenaola J in William Omondi v Independent Electoral & Boundaries Commission & 2 others(2014)eKLR. He submitted that he had put forward a prima facie case that the documents were submitted at the ground floor, and the burden shifted to the respondents to controvert the assertion, and relied on the Supreme Court case of Raila Amolo Odinga &another v IEBC & 2 others (2017) eKLR. He termed the finding by the Dispute Resolution Committee as being inimical to the law, as it was based on extraneous factors because the respondents did not put forth any evidence in rebuttal. He implores the court to be guided by Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others (2014)eKLR which held that inadvertent human error is excusable as long as it is not substantive. He submitted that he had done all things humanely possible to comply with the constitution and statute, and he was not seeking any special treatment from the court, but the very treatment guaranteed by articles 1, 3, 10, 19, 20, 22, 23, 25, 27, 38, 47, 48, 85, 159(2)(d), 193(1)(c)(ii) and 259 of the Constitution .

The Respondents’ submissions 7. The respondents urged that the 2nd respondent’s dispute Resolution Committee’s decision ought to be challenged through judicial review process under the known parameters of ultra vires, unreasonableness, illegality, irrationality as was laid out in Republic v Minister of Home Affairs &others(2008)EA 323. They submitted that since elections was a matter of great public interest governed by strict adherence to timelines, the petitioner’s private interest cannot be permitted to prejudice public interest, and relied on Republic v Independent Electoral and Boundaries Commission &anotherexparte Samuel Irungu Kabuchwa(2017)eKLR. They accused the petitioner of failing to demonstrate how they had violated his rights under articles 38 and 159(2)(d) of the Constitution , as failure by the petitioner to comply with Elections Act and Regulations cannot be termed as a technicality. They submitted that the petitioner had not demonstrated a case of violation of rights as alleged in the petition, as set out in Anarita Karimi Njeru v Republic (1979) eKLR, and if the prayers sought in the petition were granted, they would yield far reaching implications and open flood gates for any person who failed to meet timelines set by the Independent Electoral Boundaries Commission to obtain late clearance and thus throw elections preparation process into jeopardy. They submitted that since the petitioner had not submitted his name and symbol to the 2nd respondent as at the last day which was 2/5/2022, his petition ought to be dismissed.

Analysis and Determination 8. Before delving into the merits of the case, the court wishes to preliminarily address the allegation by the respondents that since the Disputes Resolution Committee already adjudicated upon this issue, the same cannot be re-litigated through this petition. It is clear that these are not judicial review proceedings where the petitioner would be asking the court to look at the legality, irrationality or impropriety of the decision by the Dispute Resolution’s Committee. No. This is a constitutional petition where the petitioner alleges breach and violation of his fundamental rights and freedoms, which falls squarely within the jurisdiction of this court and one of the remedies therefor under article 23 is judicial review orders.

9. The assertion by the respondents that the petitioner withdrew his initial petition in view of a preliminary objection on jurisdiction, was not determined on the merits as observed by the court in its decision on costs of 9/6/2022 thus, “..In the circumstances, and to give effect to the principle of access to court and justice under article 48 of the Constitution of Kenya and rule 26(2) of theMutunga Rules and bearing in mind that there has not been a determination on the merits or on the preliminary objection to the petition, the court considers that there should be a no order as to costs, so that each party bears its own costs.”

10. The sole issue for determination on the merits is where the reliefs sought in the petition should be granted.

11. The petitioner seeks to contest for the position of a member of County Assembly for Nyaki West Ward in Meru County, as an independent candidate in the forthcoming elections. The parties are in agreement that the petitioner duly complied with the constitutional and statutory requirements to run for that elective position. The petitioner alleges that he presented his clearance letters on 30/4/2022 to the office of the 2nd respondent, through an agent namely Kevin Jones Thuranira. The respondents however declined to gazette the petitioner for the reason that he had not notified them of his intention to vie by filing of the necessary documents.

12. In order to contest for the seat of Member of County Assembly, the Constitution of Kenya sets the qualifications in article 193 as follows: -“(1) Unless disqualified under clause (2), a person is eligible for election as a member of a county assembly if the person — (a) is registered as a voter; (b) satisfies any educational, moral and ethical requirements prescribed by this Constitution or an Act of Parliament; and (c) is either — (i) nominated by a political party; or (ii) an independent candidate supported by at least five hundred registered voters in the ward concerned. (2) A person is disqualified from being elected a member of a county assembly if the person— a) is a State officer or other public officer, other than a member of the county assembly; b) has, at any time within the five years immediately before the date of election, held office as a member of the Independent Electoral and Boundaries Commission; c) has not been a citizen of Kenya for at least the ten years immediately preceding the date of election; d) is of unsound mind; e) is an undischarged bankrupt; f) is serving a sentence of imprisonment of at least six months; org)has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six. (3) A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.”

13. Article 38 of the Constitution of Kenya provides as follows: -(1)Every citizen is free to make political choices, which includes the right—(a)to form, or participate in forming, a political party;(b)to participate in the activities of, or recruit members for, a political party; or(c)to campaign for a political party or cause.(2)Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—(a)any elective public body or office established under this Constitution; or(b)any office of any political party of which the citizen is a member.(3)Every adult citizen has the right, without unreasonable restrictions—(a)to be registered as a voter;(b)to vote by secret ballot in any election or referendum; and(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.”

14. Article 85 of the Constitution of Kenya provides for eligibility to stand as an independent candidate as follows:“Any person is eligible to stand as an independent candidate for election if the person— (a) is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election; and (b) satisfies the requirements of— (i) article 99 (1) (c) (i) or (ii), in the case of a candidate for election to the National Assembly or the Senate, respectively; or (ii) article 193 (1) (c) (ii), in the case of a candidate for election to a county assembly.”

15. On their part, the respondents accuse the petitioner of flouting the provisions of section 33(1) of the Elections Act, 2011. That section provides for nomination of independent candidates as follows: “(1) A person qualifies to be nominated as an independent candidate for presidential, parliamentary and county elections for the purposes of articles 97, 98, 137, 177 and 180 of the Constitution if that person— (a) has not been a member of any political party for at least three months preceding the date of the election; (b) has submitted to the Commission, at least sixty days before a general election, a duly filled nomination paper in such form as may be prescribed by the Commission; (c) has, at least ninety days before the date of a general election or at least twenty one days before the date appointed by the Commission as the nomination day for a by–election, submitted to the Commission the name and symbol that the person intends to use during the election. (d) is selected in the manner provided for in the Constitution and by this Act. (2) The Commission shall publish in the Gazette, the names of persons intending to contest in the election as independent candidates at least fourteen days before the nomination day.”

16. The petitioner submitted his application to the registrar of political parties on 21/4/2022 for clearance and confirmation as an independent candidate. The registrar of political parties duly notified him to collect his clearance letters as exhibited by annextures HMM1 and HMM2 in his supporting affidavit. He was unfortunately taken ill which prompted him to instruct an agent namely Kevin Jones Thuranira to collect the said clearance letters on his behalf and submit them to the 2nd respondent. The respondents insist that the petitioner could not be gazetted as he did not submit a clearance certificate from the Registrar of Political Parties and an intention to contest as required by regulation 15 of the Elections (General) Regulations 2012. That Regulation provides certain requirements for independent candidates as follows: “A person who is a Kenyan citizen, and who intends to contest for an elective post as an independent candidate shall— (a) obtain and file with the Commission a clearance certificate from the Registrar of Political Parties certifying that the person has not been a member of any political party for at least three months immediately before the date of the election; and (b) file with the Commission a form of intention to contest, in the Form 11N.”

17. The petitioner alleges infringement of his fundamental rights under the Constitution whereas the respondents allege that the petitioner failed to fulfill the requirements set out in the Elections Act and regulation 15 of the Elections (General) Regulations 2012.

18. Article 24 of the Constitution provides for the limitation of rights and fundamental freedoms as follows: “ (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including: - (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. (2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom: - (a) in the case of a provision enacted or amended on or after the limitation of rights and fundamental freedoms, effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. (3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this article have been satisfied. (4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance. (5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service: - (a) article 31—Privacy; (b) Article 36—Freedom of association; (c) Article 37—Assembly, demonstration, picketing and petition; (d) Article 41—Labour relations; (e) Article 43—Economic and social rights; and (f) Article 49—Rights of arrested persons.”

19. According to the Constitution , a statute may limit a right or fundamental freedom provided that such limitation is reasonable and justifiable in an open and democratic society. It has not been demonstrated that the Election Act and Regulations made thereunder are unconstitutional.

20. The court has seen the list of 500 hundred persons who appended their signatures in support of the petitioner’s candidature as a member of their County Assembly, Nyaki West Ward. If the petitioner was barred from running for the said elective seat, for want of notifying the 2nd respondent of his intentions to so vie, the same would have adverse effects on the representation of the people of Nyaki West Ward at the County Assembly level. It must be remembered that all sovereign power belongs to the people of Kenya and shall be exercised either directly or through their democratically elected representatives. The petitioner appears to have met the threshold for nomination.

21. The petitioner avers that he submitted the clearance letters to the 2nd respondent’s office on 30/5/2022, through an agent, who left them at the ground floor with the security guards. He avers that the operations of the 2nd respondent had been moved to the said floor due to the mass influx of candidates. The record is clear that the petitioner was hospitalized for sometime, thus curtailing his mobility. In a bid to comply with the strict timelines set by the Elections Act and Elections (General) Regulations, he authorized his agent namely Kevin Jones Thuranira to submit the clearance letters to the 2nd respondent’s offices situate at Anniversary Towers. According to the respondents, the leaving by the petitioner’s agent of the petitioner’s compliance documents with the guards at Anniversary Towers, did not amount to submission and filing with the 2nd respondent. It may be that the requirement to “file” the document under regulation 15 calls for presentation at an office, registry or desk set up for that purpose with due acknowledgment of receipt of such filing.

22. However, in this case, the petitioner was subsequently issued with nomination papers, which was a preserve for prequalified candidates and he attended an invite only meeting held by the 1st Respondent, for prequalified candidates. The Court must find that the actions of the Respondents, in requiring the petitioner to collect 500 signatures for persons supporting his MCA candidature, issuing him with nomination papers, issuing him with clearance letters and inviting him to a meeting for prequalified candidates, created a legitimate expectation that he would be cleared by the respondents to vie. The petitioner relied on the case of Communications Commission of Kenya & 5others v Royal Media Services & 5others (2015) eKLR where the Supreme Court stated that:-“Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation."

23. There was in the view of this court a representation made on the issuance of the nomination papers and invitation to candidate trainings and preparations for the qualified candidates that the petitioner would subject to meeting the threshold for such nomination be cleared to contest for the relevant office.

24. Accordingly, although the court finds that the presentation of the clearance certificate and Form 11N to security guards at IEBC offices did not amount to filing within the meaning of Regulation 15 of the General Regulations, subsequent events of issuance of nomination papers and invitation of the petitioner to training and preparation meetings for pre-qualified candidates created in the petitioner a legitimate expectation that he would on compliance with the nomination requirements be cleared. In addition, the Court, would in the circumstances of this case, where the petitioner explains his inability to personally attend to the filing of the necessary documents by reason of his ailment allow on the principle of Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others, supra, excuse the failure to file the necessary documents.

25. The mandate to clear candidates for nomination to contest in elections lies with the IEBC and the court may only interfere therewith if the IEBC fails to exercise that mandate or exercises it in a manner that infringes on the rights of the petitioner or otherwise contravenes the relevant provisions of the Constitution or statute, or where the exercise frustrates a valid legitimate expectation created by IEBC on any person. In the circumstances of this case, therefore, the court must initially defer to the IEBC’s consideration on the merit of the petitioner’s application nomination.

26. As the IEBC has not considered whether upon being given the nomination papers, the petitioner has complied with the constitutional and statutory requirements for nomination, the court will make an order requiring the Respondents to consider the petitioner’s application for nomination on the merits. What remains to be established after the quasi-judicial determination by the Respondent’s Dispute Resolution Committee that “the complainant complied with the constitutional and statutory requirement to stand for election as an independent candidate” is whether he has marshalled the necessary voters to support his nomination bid.

27. The court notes that the respondents have not yet printed ballot papers, or they would have said so, and thus they will not suffer any prejudice if the prayers sought by the petitioner are granted. The fear of floodgates being opened for other persons who failed to meet the deadlines set for compliance with various steps in the nomination exercise does not arise as this petition only involves the petitioner who has moved the court for orders suiting his case and for which the court makes specific reliefs on the merits and circumstances of this case, and do not affect persons not parties to this suit.

Conclusion 28. It is the respectful conclusion of this court that the constitutional right to offer oneself as a candidate under Article 38 of the Constitution is too important to be trumped by requirements of form and manner of notification by filing prescribed by Regulation 15 of the Elections (General) Regulations, 2012 in the Elections Act requiring the notification of the respondents of the candidate’s intention to vie in the Election by filing of the prescribed Form 11N.

29. First principles dictate that the idea of notification is for the administrative purposes of informing the IEBC that the particular candidate wishes to contest so that administrative arrangement may be made towards the nomination of the candidate. The fact of the candidate petitioner herein being given nomination forms and being invited for purposes of education on the electoral process is a demonstration that the object of the notification had been achieved. The Respondents cannot be allowed to rely on any want of form of delivery of the notice to defeat the constitutional right of the petitioner and the legitimate expectation created by the invitation to participate in the preparatory exercise of the IEBC.

30. Form 11N is not an end in and of itself. It serves the purpose of notification. Notice of the petitioner’s interest and intention to vie has already been given by the forms delivered by the petitioner’s agent to, and received by, security officers at the 2nd Respondent’s office allegedly on instructions of the 2nd Respondent, a fact which has not been satisfactorily shown to be untrue.

31. The IEBC’s counsel suggested that the nomination forms which the petitioner had, had not originated from the offices of the IEBC. They were not shown to be fake and it was burden of IEBC who alleged that they did not originate from their offices to prove the fact bearing in mind that the IEBC is only election agency mandated to run the elections. The allegations smack of an illegality in the procurement of the nomination forms the proof of which required cogent evidence from the IEBC as the party alleging it, in accordance with standard of balance of probability in case where fraud or serious crime is alleged on the principle in Re H & R Minors (1996) 1 All ER 1 (House of Lords).

32. In failing to consider the petitioner’s application for nomination on account of failure to file the necessary documents despite in the circumstances of this case of the legitimate expectation created by the issuance of the nomination papers predicated on information given in the said documents, the IEBC have breached the petitioner’s voting rights under articles 38 and 193 of the Constitution and related rights.

33. The justice of the case appears to this court to require that the IEBC considers on the merits the nomination forms of the Petitioner on the basis of the legitimate expectation created by his being given the nomination papers and invitation to attend the preparation meetings and training for pre-qualified candidates. The Court will set the matter for mention for compliance and any final directions shortly after the conclusion of the consideration on the merits of the petitioner’s nomination by the IEBC.

ORDERS 34. Accordingly, for the reasons set above, the court makes the following orders:1. A declaration that the respondents violated articles 38, 47, 48 and 85 of the Constitution .2. An order of certiorari is hereby issued to quash the decision of the 2nd respondent’s dispute resolution committee dated June 17, 2022. 3.The respondents are compelled by an order of mandamus to admit the petitioner’s clearance letters and notification of intention to vie and to consider his application for nomination as an independent candidate for Member of County Assembly for Nyaki West Ward in the forthcoming General Elections of August 9, 2022. 4.An order of injunction is issued barring the respondents from proceeding with the preparations of printing of ballot papers for Member of County Assembly for Nyaki West Ward until the Petitioner’s application for nomination as an independent candidate is considered by the respondents.5. The matter shall be mentioned before the Court for compliance on Wednesday the 13/7/2022. 6.In view of the public nature of the matter, each party shall bear its own costs.

Order accordingly.DATED AND DELIVERED THIS 8TH DAY OF JULY 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Ngentu with Mr. Mwirigi for the Petitioner.Mr. J. M. Mwangi for the Respondents.