[2022] KEHC 10448 (KLR)

Shimenga v Independent Electoral & Boundaries Commission & 3 others (Judicial Review E008 of 2022) [2022] KEHC 10448 (KLR) (22 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10448 (KLR)

Republic of Kenya

In the High Court at Kakamega

Judicial Review E008 of 2022

PJO Otieno, J

July 22, 2022

Between

David Shimenga

Applicant

and

Independent Electoral & Boundaries Commission

1st Respondent

Returning Officer, IEBC Kakamega County

2nd Respondent

Ramadhan Butichi

3rd Respondent

Amani National Congress Party

4th Respondent

Judgment

Introduction 1. I consider the facts revealed in this file to emerge as swell knit legal conundrum. The dispute was initially reported to the Political Parties Dispute Tribunal as No. PPDTC/E002/2022, which was heard and a determination rendered on the 28/4/2022 declaring the issuance of a nomination certificate to the 3rd Respondent by the 4th Respondent to be illegal, null and void and a direction to the 1st Respondent and it National Elections Board to issue the Ex-parte Applicant with nomination certificate for Ikolomani Constituency MP Candidate on the 1st Respondent’s ticket.

2. That decision aggrieved the 3rd Respondent who approached the Tribunal the same day with an application for review simultaneously with a Notice of Appeal to the High Court. The application was dealt with by the Tribunal and partially determined by directions of 14. 5.2022 by which the Tribunal found that there was demonstrated existence of new material it needed to consider before finally determining the application for review.

3. However, before the parties could be heard on the application for review as directed, the ex-parte applicant filed Kakamega High Court, Civil Appeal No. 1 of 2022 to which the 3rd respondent filed a cross appeal. That appeal was determined on 27. 5.2022 to the effect that the Ex-parte Applicant be deemed the 4th Respondent’s nominee and candidate for the position of Member of National Assembly for Ikolomani Constituency while the cross-appeal was dismissed.

4. It would appear that while the matter was pending the determination by the High Court, the Political Parties was once again moved and by a decision dated 19. 5.2022, which acknowledged that proceedings before it had been stayed, it held that its decision on review was ready and had the effect of not disturbing the Judgment of 28/4/2022. The tribunal then ordered that its decision be uploaded into the system and availed to the parties as and when they request. That determination even if not expressly unequivocal was to the effect that the review application had been dismissed. It is equally not clear when the parties filed and addressed the tribunal on the additional evidence.

5. The debate was not about to end, the 3rd Respondent took the next flight of stairs and was before the Court of Appeal with Civil Appeal No. E001 of 2022 (Election Petition) that was equally determined by a Judgment of 7. 6.2022. The Court of Appeal did reverse the High Court and directed that the 3rd Respondent’s application for review dated 28/4/2022 be remitted to the Political Parties Dispute Tribunal for expedited hearing and disposal. My reading of the judgment by the High Court and the Court of Appeal doesn’t reveal that the parties ever brought to the two courts the decision by the tribunal of 19. 05. 2022.

6. Things were not about to get clearer yet as the Ex-parte Applicant remembered that even the IEBC Dispute Resolution Committee (henceforth The Committee) had a mandate in the matter and did file the same dispute with that Committee as well on the 9. 6.2022. In terms of its mandate and set timelines, the Complaint was determined on the 19. 6.2022. In that Complaint the Ex-parte Applicant prayed that the clearance certificate issued to the 3rd Respondent be revoked. In its determination the Committee found that as at the date of decision by the and 1st 2nd Respondents, and its own, there was no order barring those Respondents from clearing the 3rd Respondent who had acted had acted lawfully and the decision could not be disturbed.

7. It is within that matrix that meshwork of litigation that the Ex-parte Applicant has brought these judicial review proceedings and contending in the main that by the time the 1st Respondent cleared the 3rd Respondent, there was standing the decision of 28/4/2022 hence the clearance was done contrary to a judicial order and therefore the finding by the Committee was equally irrational because by the time it was made, the Court of Appeal had remitted the dispute to the matter back to the Tribunal for the determination of the review application. To the Verifying Affidavit was exhibited, the decisions by the Tribunal, that by the 2nd Respondent, High Court and the Court of Appeal.

8. The Notice of Motion was resisted by the 1st and 2nd Respondent by the Replying and Further Affidavits sworn on the 15. 7.2022 and 19. 7.2022 respectively. The gist of the two Affidavits is that indeed the litigation had taken place as set out by the Ex-parte Applicant adding that the review application before the tribunal yielded the setting aside of the Judgment of 28/4/2022 which order was challenged on appeal at the High Court and the Court of Appeal and was ultimately decreed by the Court of Appeal to be remitted to the Tribunal for determination. That while the matter was pending before the High Court, the Court ordered stay of proceedings hence the position stood that the decision of 14. 5.2022 which had set aside the Judgment of 28/4/2022 stood stayed and that the ultimate order was by the Court of Appeal that the dispute in the application for review be heard and determined by the Tribunal. The two Respondents (1st and 2nd) contend that the net effect of the Court of Appeal Judgment is that the status quo ante was maintained and therefore that the 2nd Respondent had all the power to clear the 3rd Respondent as she did in the absence of any valid court order to the contrary.

9. the 2nd Respondent then took the position that the decision sought to be quashed had not been exhibited as the law dictate yet it was the duty and burden of the Ex-parte Applicant to bring same hence the application was destined for nothing but failure as the mandate and jurisdiction of the Court here does not extend to merit review which is the preserve of appeal. In addition, it was contended that there had not been satisfactory demonstration that the orders sought are merited; that that her decision had been upheld by the Committee; that the decision of 28/4/2022 had been set aside; that the Ex-parte Applicant never presented her papers for clearance and lastly that none of the reasons for rejecting a candidate’s papers as set out by Regulation 43, Election (General) Regulations 2012, was before her to justify rejection of the 3rd Respondent’s papers. The Affidavits equally exhibited the decisions in the trail of litigation and for great measure the decision of the Committee dated 19. 6.2022 in Complaint No. 301 of 2022. On those reasons, the 1st and 2nd Respondent beseeched the Court to find no merit in the application and to dismiss it.

10. For the 3rd and 4th Respondents, there was filed an Affidavit sworn by the 3rd Respondent on the 13. 7.2022. Its gist is that he is the gazette nominee candidate for the 4th Respondent having been gazette on the 1. 7.2022 then additionally contends that he was validly cleared by the 2nd Respondent because there was no order impeding same; that the Judgment of 28/4/2022 had been set aside on 14. 5.2022. He then rehashed the trail of litigated dispute from the Tribunal up to the Court of Appeal contending that by the orders of 19. 5.2022 the Tribunal while taking note of stay orders by the High Court directed the file to be closed and that by the Judgment of the Court of Appeal of 7. 6.2022 there is no Judgment as of now by the Tribunal. He exhibited to Court the gazette notice of 01. 07. 2022 where his name appears, pleadings between the Tribunal, its decision as well as the decisions by the High Court and the Court of Appeal and urged that the application be dismissed for lack of merits. The 3rd and 4th Respondents also filed and served a Preliminary Objection which was determined by a ruling of 18/7/2022, as well as a list of authorities citing two decisions; Joseph Ibrahim Musyoki vs Wiper Democratic Movement-Kenya & Another (2017) eKLR andDr. Billy Elias Nyonje vs The National Alliance Party of Kenya and Others (2013) eKLR

11. The Court did take oral submissions by the three Counsel and thank them for the industry. The Court has duly taken note of the submissions and discern the dispute to rotate around the question whether by the time the 2nd Respondent cleared the 3rd Respondent, there was a court order or decision that impeded such clearance. That issue must interrogate the judgment by the Tribunal dated 28/4/2022, orders dated 14th and 19th May 2022 by the Tribunal as well as the order of stay by the High Court dated 18/5/2022.

12. I have reviewed the record availed to the court and I do find as a fact that while the direction of 14/5/2022 were by way of giving a road map on how to handle the review application, it apparent went overboard in setting aside the decision of 28/4/2022. This court takes the view that it was an overreach by the Tribunal for this court wonders what other business the Tribunal would undertake by way of review once the decision sought to be reviewed had been set aside. That was glaring error from which this court seizes its mandate under article 165 (6), call up the proceedings before the Tribunal and culminating on the order of 14. 5.2022 and by way of supervision directs that the orders were improperly and pre-emptily given and are thus set aside to enable the review application be dealt with on a level playing ground. The court finds that the same to have been improperly given because a tinker with the judgment and orders of 28/4/2022 could only be made after observance of the rules of justice and a fair hearing of the application on the merits.

13. Equally, the orders of 19. 5.2022 given with acknowledgement that the High Court had stayed the proceedings before the Tribunal are bad for not only having been given in disobedience of the High Court orders but also evidently before the parties were heard on the alleged additional materials by way of evidence alleged by the 3rd Interested Party. The Court notes that the way the Tribunal dealt with the matter on the two occasion was clearly injudicious and a manner that is not expected of a judicial authority. It is that injudicious that gave birth to the roller coaster that has, in my view, taken undeserved plenty of judicial time. Those orders are equally set aside for being irrational and clearly unjust.

14. In coming to the foregoing conclusions and findings, I note that the Court of Appeal has decreed that the Tribunal deals with the matter in an expeditious way towards final determination. That decision by the Court binds upon this Court and the Tribunal hence none should be seen to ignore or circumvent it. I seek to have that order observed and complied with in the spirit that electoral dispute must be dealt with timeously regard being paid to the strict timelines and limited time towards the general elections.

15. Having said so, the task of this Court in an application of this nature is to interrogate whether, the decision now challenged was faulted or tainted by any irrationality, illegality or procedural impropriety. The Court must also check if the 2nd Respondent violated any law as rules of procedure and if it acted within the confines of its legal mandateRepublic v Ministry for Agriculture, Livestock, Fisheries and Irrigation; Agriculture and Food Authority & another (Interested Parties) Ex parte Susan Wanjiku & 80 others [2021] eKLR

16. To start with, the courts determination on orders by the Tribunal of 14th and 19th May 2022 leaves the Judgment of 28/4/2022 intact. If intact and by the Affidavit of the 2nd Respondent stating that he has been informed and he believed the information to be true and accurate that proceedings went the way set out in the two Affidavits, then there could not have been a justification to accept the nomination papers by the 3rd Respondent contrary to the Judgment because it must be taken that he knew of the court orders including the determination of 19th may 2022 restating the judgment of 28th April 2022 as well as the orders by the High court staying the tribunals orders of 14th may 2022.

17. The Court holds and finds that where a body of person exercising judicial or quasi-judicial authority sets to ignore a superior court’s order, it exposes itself as irrational. When irrational the door is flanged open for this court to enter the room and call out such irrational conduct and action. I do find that in clearing the 3rd Respondent on the 6th June 2022, when the High Court order was reigning that the Judgment of 28/4/2022 stood restored, the 3rd Respondent acted irrationally and the Court’s tool in Certiorari is therefore called into action. I do therefore issue the order of Certiorari quashing the decision of the 2nd Respondent dated the 6/6/2022 clearing the 3rd Respondent and issuing him with certificate of nomination for Parliamentary/County Elections dated 6. 6.20221.

18. It is of note that the Committee in dismissing the Complaint fell into the same error the 2nd Respondent had fell into when it said at para. 9 of its decision that:“Copies of the orders of the Political Parties Dispute Tribunal, the High Court and the Court of Appeal were produced in court. From our reading, we agree with the Respondent that there were no orders barring her from clearing one Ramadhan Butichi as she did. The Court of Appeal Orders of 7th June 2022 set aside the High Court orders of 27th May 2022. As such, the decision of the Political Parties Disputes Tribunal of 14th May 2022 setting aside its own Judgment on 28th April 2022 prevails. It is the PPDT decision of 28th April 2022 that had nullified the nomination of one Ramadhan Butichi by the ANC Party.”

19. that decision by the committee is equally irrational for it fails to appreciate the decision that were existing as at the date the 3rd respondent was cleared in as much as it failed to appreciate and seek to facilitate the decision of the court of appeal directing that the review application be heard by the tribunal.

20. How about the order for Mandamus? The order for Mandamus is targeted to direct a body or person to perform its statutory duty and mandate. The order is however not available to court to substitute its decision for that of the supervised body. In the circumstances of this matter, the court has obscured that the decision by the Court of Appeal needs to be observed and complied with rather than being ignored or circumvented.

21. At the hearing, the Counsel were asked to confirm whether the application for review had now been argued as ordered by the Court of Appeal and all answered to the negative. This Court takes the view that to issue Mandamus would make any resort to the Tribunal to determine the review application superfluous and otiose. According and in observance of stare decisis and the law that a judicial body must take judicial notice of decisions by other bodies, if relevant to the matter before it, this court recognizes the decree by the Court of Appeal and the need to have it enforced. The relevance of that decision to this court cannot be gain said. It is beyond gain saying because the court must be read to have said that the mandate to determine nomination dispute between a party and its member is with the Tribunal which must be allowed to execute its mandate.

22. In conclusion, while I do issue Certiorari in terms of prayer 1 of the Motion dated 7. 7.2022, I do decline the prayer for Mandamus to enable the Political Parties Dispute Tribunal deal and determine the application for review pending before it.

23. As the Respondent appeared to have set out to deliberately ignore or just circumvent the judicial orders in force, I do award the costs of the application to the Ex-parte Applicants.

DATED, SIGNED AND DELIVERED IN KAKAMEGA, ONLINE, THIS 22ND DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence ofMr Okali for the ex-parte ApplicantMr Mulama for the 1st and 2nd RespondentsMr Shikala for the 3rd and 4th RespondentsCourt Assistant: Kulubi