[2017] KEHC 4638 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL PETITION NO 284 OF 2017

IN THE MATTER OF ARTICLES 4, 38, 84, 85, 91, 92, 103, 137(1) (C), 180 (2) AND 165 OF THE CONSTITUTION OF THE CONSTITUTION OF KENYA,

AND

IN THE MATTER OF THE ELECTIONS ACT, 2011

AND

IN THE MATTER OF THE POLITICAL PARTIES ACT, NO. 11 OF 2011

BETWEEN

STANLEY OTIENO OKELLO...................……………………….….............................. PETITIONER

VERSUS

DANIEL OKINDO MAJIWA................................……………………………….…..1ST RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.....................2ND RESPONDENT

THE REGISTRAR OF POLITICAL PARTIES....................................................3RD RESPONDENT

JUDGEMENT

1. At the outset, I find it appropriate to address a crucial issue that is evident in this petition which cannot pass the attention of this court. Prayers (b) to (m) of the petition, a total of 12prayers are such that if granted , they will directly affect and have a serious impact on hundreds if not thousands of persons who are not parties to this petition. The reliefs in question are reproduced below.

a. A DECLARATIONdeclaring that all persons who previously stood for nomination as political party candidates for the 2017 general elections are ineligible to stand as independent candidates in the 2017 general elections.

b. AN ORDER OF DECLARATIONdeclaring that all persons who previously stood for nomination as political party candidates for the 2017 general elections are ineligible to stand as candidate (s) of a different political party and to run for elections in 2017.

c. A DECLARATIONdeclaring that all or any clearances, registrations or nominations granted to persons who previously stood for nomination as political party candidates in the 2017 general elections to stand as independent candidates in the 2017 general elections are null and void and be ordered withdrawn.

d. AN ORDER OF PROHIBITIONprohibiting Members of Parliament and Members of County Assembly who have resigned from their political parties from continuing to sit in Parliament, drawing emoluments: salaries, financial benefits and allowances, as Members of Parliament or County Assembly.

e. AN ORDERrequiring Members of Parliament and all Members of County Assembly who have resigned from their political parties to refund all or any salaries, financial benefits and all allowances received effective their date of resignation.

f. ORDERSbe directed to the ethics and Anti-Corruption Commission and the Director of Public Prosecutions to enforce (d) and (e) above.

g. AN ORDER OF DECLARATIONdeclaring that the action of the registrar of political parties in purporting to clear to stand for elections as political party candidates is inconsistent with the provisions of sections 27, 28, 31, 32, and 33 of the Elections Act as read together with Articles 85 of the Constitution; and, is therefore null and void.

h. AN ORDER OF DECLARATIONdeclaring that the action of the Registrar of Political Parties in purporting to clear individuals who stood as political party candidates to stand to be elected as candidates of other political parties violates the provisions of Article 84 of the Constitution requiring all candidates and political parties to comply with the Code of Conduct prescribed by the Independent Electoral and Boundaries Commission; and, is therefore null and void.

i. AN ORDER PROHIBITINGthe Independent Electoral and Boundaries Commission from registering or publishing in the Gazette as independent candidates persons who run for nomination as political party candidates in the party primaries.

j. AN ORDER OF DECLARATIONdeclaring that a person cannot stand as an independent candidate for the position of the President of Kenya and that action of the individuals and the Respondents in purporting to allow individuals to stand for election as President of Kenya as independent candidates violate the provisions of Article 85 As read together with Article 4 of the Constitution and is therefore null and void.

k. AN ORDER OF DECLARATIONdeclaring that a person is not eligible to stand as an independent candidate for the position of County Governor and that such act is inconsistent with the provisions of Article 85 as read together with Article 4 of the Constitution and is therefore null and void.

l. AN ORDER RESTRAININGindependent candidates from using or applying colours registered for political parties, the images of presidential candidates for political parties in posters and other campaign materials to seek election in strongholds of the respective presidential candidates and political parties.

2. Counsel for the petitioner in his submissions, attempted to justify the failure to enjoin the persons likely to be affected by the orders sought and submitted that this case can be determined the absence of the persons likely to be affected notwithstanding. In support of his position, counsel cited two cases which with tremendous respect are totally in applicable and do not represent the correct position of the law and the jurisprudence in this area of the law.

3. Counsel for the Respondent submitted that this court cannot effectively determine this petition in the absence of the persons likely to be affected by the orders. He correctly points out that the said orders affect all aspirants who have been cleared as independent candidates for the elections scheduled for 8th August 2017 without impleading them in this petition. Counsel correctly submitted that this would amount to violation of article 50 (1) of the constitution and that the right to be heard is non-derogable under article 25 (c) of the constitution.

4. Counsel also submitted that the presence of the persons likely to be affected by the orders sought is likely for the court to effectually and completely adjudicate upon and settle all the questions involved.[1]

5. Counsel for the second Respondent correctly submitted that the petition does not raise a cause of action against the second Respondent.

6. Evidently, the orders sought in this petition, if granted, will affect persons who are not parties to this case. To me, such a scenario poses a danger of granting orders affecting other persons without giving them the benefit of a hearing. The law in cases of this nature was settled by the Supreme Court of India in Prabodh Verma vs. State of U.P.[2] and Tridip Kumar Dingal vs. State of W.B.[3] in which it held that if a person challenges a selection process, successful candidates or at least some of them are necessary parties.

7. A person or a body becomes a necessary party to court proceedings, if he is entitled in law to defend the orders sought. The term “entitled to defend” confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for there would be violation of natural justice. The principle of audi alteram partem has its own sanctity. That apart, a person or an authority must have a legal right or right in law to defend or assail.

8. I must first clarify that as a proposition of law it is not in dispute that natural justice is not an unruly horse. Its applicability has to be adjudged regard being had to the effect and impact of the order and the person who claims to be affected; and that is where the concept of necessary party becomes significant. I find it appropriate to refer to the principle of natural justice as enunciated by the Supreme Court of India in Canara Bank vs. Debasis Das.[4] I may profitably reproduce the same here below:-

“Natural justice has been variously defined. It is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.”

And again:-

“Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance....”

9. The concept and doctrine of Principles of Natural Justice and its application in Justice delivery system is not new. It seems to be as old as the system of dispensation of justice itself. It has by now assumed the importance of being, so to say, "an essential inbuilt component" of the mechanism, through which decision making process passes, in the matters touching the rights and liberty of the people. It is no doubt, a procedural requirement but it ensures a strong safeguard against any Judicial or administrative; order or action, adversely affecting the substantive rights of the individuals.

10. It is expressly recognized in our constitution. The right to a fair hearing under Article 50(1) of the Constitution encompasses several aspects. These include, the individual being informed of the case against her/him; the individual being given an opportunity to present her/his side of the story or challenge the case against her/him; and the individual having the benefit of a public hearing before a court or other independent and impartial body.

11. The constitution recognizes a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations. It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[5]

12. Our courts have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.[6]

13. I have referred to the aforesaid passages as they state the basic principle behind the doctrine of natural justice, that is, no order should be passed behind the back of a person who is to be adversely affected by the order. An unsuccessful candidate challenging the selection or nomination process as far as the jurisprudence in this area is concerned is bound to make the selected/successful candidates parties.

14. The Supreme Court of India put it succinctly in J.S. Yadav vs State of U.P. & Anr[7] in Paragraph 31 held thus:-

“No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the…,…. provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the petitioner-plaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. ………..”

15. The decisions cited above are graphically clear that the nomination process is under challenge but the nominees were not made parties. There can be no shadow of doubt that they are necessary parties. In my view, the first defect in this petition is that of non-joinder of necessary parties.[8] Those who were vitally concerned, namely, the successful candidates or some of them in representative capacity were not made parties — not even by joining some of them in a representative capacity, considering that their number may be too large for all of them to be joined individually as respondents.[9] A Court ought not to decide a case without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large.

16. In view of my above analysis on the non-joiner of the successful candidates in the challenged nomination exercise, I find that allowing reliefs directly affecting persons who are not parties before the court would amount to condemning the persons to be likely affected without affording them the opportunity to be heard. On this ground alone I dismiss prayers (b) to (m) of the petition.

17. A second crucial point to note is that in the body of the petition, the petitioner asks this court to interpret several provisions of the constitution but in the reliefs sought in the petition, there is no prayer to that effect. The form of a petition and its contents is clearly stated in Rule 10 (1) and (2) (a) to (g) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. [10]

18. The court cannot grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the petition.[11]

19. Notwithstanding the above, I will examine the provisions in question. Article 137(1) provides that a person qualifies for nomination as a presidential candidate if the person—

(a) is a citizen by birth;

(b) is qualified to stand for election as a member of Parliament;

(c) is nominated by a political party, or is an independent candidate; and

(d) is nominated by not fewer than two thousand voters from each of a majority of the counties.

20. Article 85provides for eligibility any person to stand as an independent candidate for election if the person— These are:-

(a) is not a member of a registered political party and has notbeen 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.

21. Article 137 (1) (c) and article 85 (a) above are explicitly clear and requires no elaboration. The Supreme court of India put it bluntly in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others[12]observed that:-

“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.”

22. In any event, one possible suggestion of the indeterminacy of canons is that statutory construction should be a narrow pursuit, not a broader one:-

"[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”[13]

23. Article 180 (2) of the constitution provides that to be eligible for election as county governor, a person must be eligible for election as a member of the county assembly. Again this provision is exceedingly clear and just like article 85 above requires no interpretation.

24. Section 33 of the Elections Act provides that:-

33. Nomination of independent candidates

(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.

25. Section 33 of the Elections Act[14] stipulates the requirements for nomination of independent candidates. This is an Act of Parliament to provide for the conduct of elections to the office of the President, the National Assembly, the Senate, county governor and county assembly; to provide for the conduct of referenda; to provide for election dispute resolution and for connected purposes. It was enacted to give effect to the provisions of the constitution. The above section, is in my view consistent with the provision of the constitution and in particular article 85.

26. In all fairness, the petition is based on clear misunderstanding of the provisions in question. As earlier pointed, there is no prayer in the petition seeking the interpretation of the above provisions other than the contents of paragraphs 60 (a) to (i) of the petition but no prayers flowing from the said paragraphs have been sought in the reliefs section of the petition and on this ground, in opt to say no more. The court cannot grant a relief that has not been prayed for in the reliefs.

27. The remaining prayer in the petition is prayer (a). It seeks a declaration that the Respondent is not eligible to stand as an independent candidate for the position of Member of National Assembly for Kaspul Constituency on 8th August 2017 and asks that his nomination be revoked.

28. This raises the question whether or not this court is the proper forum. This is because as I understand it, it relates to a nomination dispute. This calls for the determination of Article 88 (4) (e) of the constitution, Section 4 (e) of the Independent Electoral and Boundaries Commission Act[15] and Section 74of the Elections Act.[16]

29. Article 88 (4) (e) of the constitution provides that:-

(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

(e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;

30. Flowing from the above provisions is section 4 (e) of the Independent and Electoral Boundaries Commission Act[17]provides as follows:-

4. Functions of the Commission

As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—

(e) the settlement of electoral disputes, including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;

31. The above provisions are replicated in section 74 (1) of the Elections Act[18]which provides that:-

Settlement of certain disputes74 (1) Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.

32. It is not clear why the petitioner did not pursue the above clear laid down mechanism.Whenever an Act of Parliament provides for a clear procedure or mechanism of redress, the same ought to be strictly followed. Indeed, in the case of the Speaker of the National Assembly vs Karume.[19] the Court stated:-

“….Where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or the Act of Parliament, that procedure should be strictly followed…..”

33. The court of appeal[20] discussing the same subject reiterated as follows:-

“…..This Court has in the past emphasized the need for aggrieved parities to strictly follow any procedures that are specifically prescribed for resolution of particular disputes."Speaker of the National Assembly v. Karume (supra)

34. The court of appeal in Samson Chembe Vuko v Nelson Kilumo & 2 others[21] also adopted the above reasoning as late as 27th May 2016 while this court as late as 12th May 2017 in Jennifer Shamalla vs The Law Society of Kenya & Others[22] cited the above authorities with approval and arrived at the same conclusion.

35. In my view, the petitioner ought to have utilized the mechanism provided under the above provisions before approaching the high court. I find backing in the above cited provisions of the law, the cited cases and also in the decision rendered in Boniface Mwangi vs Ressident Magitrates Court, Milimani & 2 Others[23]where it was held that to convert every issue into a constitutional issue is to undermine the importance of the process. Also relevant is the decision rendered in Peter Ochara Anam & 3 Others vs CDFB & 3 Others[24]where it was held that the constitution was not meant to replace statutes that provide remedies to those concerned.

36. Further, as correctly pointed by the second Respondent, the petition does not disclose any reasonable cause of action against the second Respondent.

37. Consequently, I find that the petitioner ought to have raised the issue of nomination before the IEBC Dispute Resolution committee. I decline to assume jurisdiction to determine this issue. The upshot is that this petition fails. I therefore dismiss this petition with costs to the second and third Respondents.

Orders accordingly

Signed, Dated at Nairobi this13thday ofJuly2017

John M. Mativo

Judge

[1] Counsel cited Andy Forwarders Services Ltd & Another vs Waterhouse Coopers Limited & Another {2012} eKLR

[2] {1984} 4 SCC 251

[3] {2009} 1 SCC 768

[4] {2003} 4 SCC 557

[5] Kioa v West (1985), Mason J

[6] See Onyango v. Attorney General,[6] Nyarangi, JA asserted at page 459 that:-“I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.” At page 460 the learned judge added:-“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”And inMbaki & others v. Macharia & Another,[6]at page 210, the Court stated as follows:-“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

[7] {2011} 6 SCC 570

[8]See decision by a three-judge Bench in Prabodh Verma and Others v. State of Uttar Pradesh and Others{1984} 4 SCC 251

[9] Ibid

[10] L. N. No. 117 of 28 June 2013

[11] Bachhaj Nahar vs. Nilima Mandal & Anr., (Civil Appeal Nos. 5798-5799 of 2008) decided on 23. 09. 2008 and reported as (2008) 17 SCC 491 dealt with the issue as to whether court can go beyond what is pleaded in pleadings for adjudication/.

[12] {1987} 1 SCC 424

[13]Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The Court takes much the same approach when it chooses congressional intent rather than statutory text as its touchstone: a canon of construction

should not be followed “when application would be tantamount to a formalistic disregard of congressional intent.” Rice v. Rehner, 463 U.S. 713, 732 (1983).

[14] Act No. 24 of 2011

[15] Act No 9 of 2011

[16] Act No 24 of 2011

[17] Act No. 9 of 2011

[18] Act No. 24 of 2011

[19] {2008} 1KLR 425

[20] In the case of Mutanga Tea & Coffee Company Ltd vs Shikara Limited & Another {2015}eKLR

[21] {2016} eKLR

[22] Pet no. 85 of 2016

[23] {2015}eKLR

[24] {2011}eKLR