[2023] KEHC 23862 (KLR)

Shimaka v Clerk, County Assembly of Kakamega & another; Namatsi (Interested Party) (Constitutional Petition E018 of 2022) [2023] KEHC 23862 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23862 (KLR)

Republic of Kenya

In the High Court at Kakamega

Constitutional Petition E018 of 2022

PJO Otieno, J

October 13, 2023

IN THE MATTER OF ARTICLES 1,2,19,20,21,22,23,33,36,38,47,48,50,73,165,177,178,193 & 258 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF SECTION 4,5,6,7,8,9,11 & 12 OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015 AND IN THE MATTER OF SECTION 7 OF THE COUNTY GOVERNMENTS ACT 2012 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES 2013 AND IN THE MATTER OF THE ELECTION OF THE SPEAKER OF THE COUNTY ASSEMBLU OF KAKAMEGA

Between

Leonard Necheza Shimaka

Petitioner

and

Clerk, County Assembly of Kakamega

1st Respondent

County Assembly of Kakamega

2nd Respondent

and

James Wanzala Namatsi

Interested Party

Judgment

The Petitioners Case 1. In his Petition dated 20th September, 2022, the Petitioner is described as a resident of Kakamega County, who claims that on or about 18th September, 2022 he presented himself for the nomination for election to the Office of the Speaker of the County Assembly of Kakamega having been proposed by Geoffrey Sikolia and seconded by David Kivishi elected Members of the County Assembly of Kakamega representing Chemuche and Manda Shivanga ward respectively.

2. In accordance with the rules set by the Respondents, it is pleaded, a nomination form was duly completed and submitted with the following documents: -a.A proposal form signed by two (2) Members of the County Assembly;b.A copy of the Curriculum Vitae;c.Certified copies of academic certificates;d.Clearance from the Independent Electoral and Boundaries Commission (IEBC);e.Tax Compliance Certificate from the Kenya Revenue Authority;f.Clearance from the Higher Education Loans Board;g.Clearance Certificate from the national Police Service (Certificate of Good Conduct);h.Clearance Certificate from the Credit Reference Bureau (CRB);i.Certified Copy of National Identity Card/Passport and;j.The Nomination form be delivered to the 1st respondent’s office at least forty-eight (48) hours before the appointed time at which the assembly is to meet the elect speaker.

3. The Petitioner pleads that he duly complied with the above conditions and had the legitimate expectation that he would be cleared to contest, only to learn on 20th September that the 1st Respondent had released a list of shortlisted candidates for the Office of the Speaker of the County Assembly of Kakamega with his name missing. The Petitioner contends that the exclusion of his name from the list of the shortlisted candidates violated his constitutional rights under articles 38(2), 36(1) and 47 of the Constitution of Kenya, 2010 and is thus seeking for the following reliefs: -“a)A declaration that the 1st Respondent’s action to arbitrarily exclude the Petitioner from the list of shortlisted candidates for the Office of the Speaker of Kakamega County Assembly contravenes his fundamental rights and freedoms.b)An order to issue restraining the 1st Respondent from conducting the elections for the Speaker of Kakamega County Assembly in exclusion of the Petitioner as one of the candidates.c)An order compelling the 1st Respondent to include the name of the Petitioner LEONARD NECHEZA SHIMAKA as one of the candidates for the seat of Speaker of Kakamega County Assembly.d)Costs of this Petition be provided for.”

4. The Petition is supported by the Affidavit of Leonard Nacheza Shimaka sworn on the 20th day of September, 2022 in which he reiterates the claims in the petition and further states that efforts to seek clarification from the office of the 1st respondent regarding an omission of his name from the list of short listed candidates fell on deaf ears and he is yet to understand on what basis he was disqualified.

5. In response to the Petition, the Respondent filed a response dated 6. 12. 2022, a list of documents and witness statement by Esther Ariko, its acting Clerk both dated 13. 12. 2022. In the response, all the averments in the Petition are denied and strict proof invited. It was then asserted that the Petitioner was not a candidate for election of a Speaker as at the close of the timeline set because he had not presented his documents and having submitted same late, he failed to submit all the required documents, was thus disqualified adding that the election having been conducted the Petition and its prayer have been overtaken by the events. Accordingly, the Respondent contends that the Petitioner is not entitled to the remedies sought at all.

6. The Court directed that the parties canvass the amended Petition by way of written Submissions but only the Respondent complying with the said orders. Instead of filing Submissions the Petitioner chose to file an application to amend the Petition which application was dismissed on the 20. 6.2023. Even after that dismissal the Petitioner did not file any Submissions. This Judgment thus has no impute from the Petitioner by way of Submissions.

Respondent’s Submissions 7. It is their Submission that the Petitioner did not meet the basic qualification since he failed to submit his clearance certificate from the Ethics and Anti-Corruption Commission, that the Petitioner’s documents were submitted after the scheduled time and that the elections were conducted as scheduled and none of the prayers is capable of being awarded. It is urged that the Petition be dismissed.

Issues for Determination 8. I have looked at the amended Petition, the responses thereto and the Submissions by the Respondent herein and discern the following only issues falling for determination to be whether: -a.The Respondents violated the Petitioner’s constitutional rights as espoused under Articles 36(1), 38(2) and 47 of the Constitution of Kenya, 2010 and ifb.The Petitioner is entitled to the reliefs sought.

Whether the respondents violated the petitioner’s constitutional rights as espoused under Articles 36(1), 38(2) and 47 of the Constitution of Kenya, 2010 9. It is now settled law since Annarita Karimi Njeru vs. Attorney General [1979] KLR 154; [1976-80] 1 KLR 1272, that where a Petitioner claims violation of his or her constitutional rights and seeks relief under the Constitution, the Petitioner ought to plead with precision the right that he alleges to have been violated and the manner of violation.

10. The Petition cites the violation of the Petitioner’s rights under articles 36(1), 38(2) and 47 of the Constitution of Kenya, 2010.

11. It is overly clear that the Petitioner simply narrated the events leading up to this petition but failed to give the particulars of the alleged contravention. He failed the substantive duty of a constitutional Petitioner. The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR re-affirmed the position of the law that:-“…we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to.”

12. In this matter, the Petitioner did very little to give particulars of the alleged infringement of his constitutional rights. Even in prosecuting the matter, he was laid back, never attended court and failed to file Submissions when ordered to do so. He appears to have lost interest in this Petition or this Petition is one of those that are filed to achieve some ulterior object not necessarily to vindicate a right.

13. In addition, it being asserted by the Respondent and not controverted by the Petitioner that the nomination papers were incomplete and lodged out of time, it would have been prudent for the Petitioner to establish what time he lodged his papers and related that to the deadline. He never made any such attempts.

14. In further addition, the two substantive prayers, (b) & (c) are not capable of grant as the elections were conducted and third parties to the Petition elected as the Speaker and Deputy. The prayers are incapable of grant because after the elections to grant same would be superfluous and most inefficacious.

15. In conclusion, the Petitioner dated 20. 9.2022 is determined to have no merit and is dismissed with costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 13TH DAY OF OCTOBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the PetitionerNo appearance for the RespondentsCourt Assistant: Polycap Mukabwa