[2017] KEHC 9168 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW DIVISION

JR MISC. APPLI. NO. 371 OF 2017

IN THE MATTER OF MEMBER OF PARLIAMENT,

EMBAKASI NORTH, NAIROBI COUNTY

STEPHEN OMODIA EMUSUKUT ………………….........………….……..…. APPELLANT

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION … 1ST RESPONDENT

RETURNING OFFICER EMBAKASI NORTH CONSTITUENCY…….. 2ND RESPONDENT

JUDGMENT

1. By Chamber Summons dated 21/6/2017 under certificate of urgency the exparte Applicant Stephen Omodia Emusukut moved the court for orders:-

1)That this application be certified as urgent and service thereof be dispensed with in the first instance.

2)That leave be granted to the ex-parte applicant to apply for orders of Certiorari to quash the proceedings/decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee in Complaint No.214 of 2017 dated 8th June, 2017.

3)That leave be granted to the applicant to apply for orders of mandamus and compel the Respondents to receive his nomination papers for the position of a Member of Parliament, Embakasi North Constituency, Nairobi County.

4)That all the necessary and consequential orders and direction be given.

2. The Application was supported by the annexed statement of facts and affidavit verifying the statement of facts sworn by the ex-parte Applicant in which it was deponed that the ex-parte applicant was an aspirant vying for the position of member of parliament, Embakasi North Constituency, Nairobi County as an Independent Candidate and that having complied with all the requirements to vie for the said position he presented his papers and all relevant documents as required by the electoral laws and regulations on 1st June, 2017. However, the Respondent closed their office at 2. 30 p.m. citing the Madaraka day celebrations.

3. It was deponed further that he returned to the Respondent’s offices on 2nd June, 2017 at 8. 16 a.m. to continue with the proceess of handing in his documents and had in actual fact exceeded the threshold of 1000 with 1200 out of his 2710 supporters presented were cleared/confirmed by the Respondent and was therefore shocked to be told that he was late and disqualified.

4. He subsequently lodged a complaint with the Respondents Dispute Resolution Committee in regard to the failure by one Frank Boinnet, the Returning Officer Embakasi North Constituency to clear him to vie for the position in complaint No. 214/2017 whose decision he therefore seeks to be reviewed by the Court on the basis that:-

i)The decision alleges that he was scheduled to submit his nomination papers on 31st May, 2017 which was the date for presentation by MCA while he was vying for position of Member of Parliament whose submissions were 1st and 2nd June, 2017.

ii)The committee alleged that he had not met the required threshold of 500 supporters which is the requirement for MCA while he was vying for the office of Member of Parliament.

iii)That the decision is apparently erroneous for referring to nomination for the candidate to County Assembly while he was vying for the office of National Assembly.

iv)The committee erred in law and fact in reaching their decision and took into consideration irrelevant facts and failed to take into consideration relevant facts.

5. In view of the urgency of this matter – leave was granted to the Ex-parte applicant to file for Judicial Review and in response to the said application the 2nd Respondent filed a Replying Affidavit in which he confirmed that the ex-parte Applicant was one of the aspiring candidates for the position of Member of the National Assembly for Embakasi North Constituency as an independent candidate who attended pre-nomination meeting held on 23rd May, 2017 and collected his nomination papers and checklist.

6. It was deponed that the ex-parte Applicant was scheduled to present his nomination papers on 1st June, 2017 at 2. 30 p.m. but did not appear and on his own request he was rescheduled to 2nd June, 2017 but never showed up to present his papers and that the Applicant was therefore challenging the merits of the decision made by the Respondent’s Dispute Resolution Committee and not the decision making process as required by the nature of his application.

SUBMISSIONS

7. The application herein was conversed by way of submissions and on behalf of the Ex-parte applicant, it was submitted that it was undisputed that the Applicant had met all the requirements as per the Constitution and Electoral status and that the ex-parte Applicant was allocated 2. 30 p.m. of 1st June, 2017 to present his papers but could not and continued with the process on 2nd June 2017 only for the 2nd Respondent to act unfairly in rejecting the ex-parte application papers. It was submitted that the decision of the 1st Respondent Dispute Resolution committee was conducted irrationally, irregularly, unjustly and recklessly since it purported to irrationally degrade the Applicant to the office of the County Assembly from National Assembly.

8. It was submitted that the Respondent acted unfairly and without due consideration to clear facts that were before it and therefore the ex-parte applicant must not suffer because of the negligence of the Respondents. In support therefore the following decisions were quoted but without providing the authorities for court’s perusal:-

1) REPUBLIC v KENYA REVENUE AUTHORITY & OTHERS (2013) eKLR to wit:-

“Applicant had to show that the decision of act complained of is tainted with illegality, irrationality and procedural impropriety. Impropriety is when a decision-making authority commits an error in law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultravires.

2)MUNICIPAL COUNCIL OF MOMBASA v REPUBLIC AND OTHERS CIVIL APPEAL NO. 185 OF 2001

“The Court will concern itself with whether the decision maker took into account all the relevant or did take into account irrelevant matters…..”

9. On behalf of the Respondent it was submitted that the Ex-parte Applicant failed to present his nomination papers as scheduled and that the Applicant lodged complaint No. 214/17 against the 2nd Respondent before the 1st Respondent’s Dispute Resolution Committee seeking to be allowed to present his nomination papers out of time since he had not complied with the timelines and that the only issue for determination was whether the error in referring to the date of presentation of the exparte application papers was 31st May, 2017 and the threshold of 500 supporters for MCA affected the final order issued by the tribunal. It was submitted that the said error could be rectified by the court. See REPUBLIC v JARED WAKHULE TEBEI & Another (2013) eKLR under the supervisory jurisdiction of the court.

10. It was submitted that the decisions being challenged makes no reference to the less number of supporters as being the ground and that if that was the position then the papers could have been invalidated under Regulation 43(2)(d) (3) and (4) of the Election (General) Regulations and would have been endorsed on the nomination papers. It was submitted that remedy of Judicial Review is only concerned with reviewing not the merits of the decisions but the decision making process itself and the case of REPUBLIC v DPP Exparte Victory Welding Words Ltd (2013) eKLRwas submitted.

11. It was further submitted that the exparte applicant had sought to demonstrate to the court how he allegedly had complied with the pre-requisite for the nomination by adducing fresh evidence which he never produced before the committee which is unacceptable in law and the following authorities were submitted.

a)MICHAEL MUNGAI v FORD KENYA ELECTION NOMINATION BORAD AND 2 OTHERS (2013) eKLR.

b)ANDERS BRUEL t/a QUEENCROSS AVIATION v KENYA CIVIL AVIATION AUTHORITY & ANOTHER (2013) eKLR.

DETERMINATION

12. The basic principles for Judicial Review as per R DOUGLASS DOUGLAS AND JONESS ADMNISTRATIVE LAW (2002) pg 426 is as follows:-

“The most basic rules of administrative law are first that the decision makers may exercise only those powers which are conferred on them by law and, second, that they may exercise those powers only after compliance with such procedural prerequisites as exist. So long as administration comply with those two rules, their decision is safe” (Emphasis added).

13. In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and law before it, would have made such decisions. Such decision is usually in defiance of logic and acceptable moral standard, procedural impropriety is when there is a failure to act fairly on the part of the decisions making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercise jurisdiction to make a decision. See REPUBLIC v DIRECTOR OF PUBLIC PROSECUTION exparte VICTORY WELDING WORKS LTD High Court of Nairobi Misc. Civil Application No. 249 of 2012 (2013) eKLR.

14. The above position has been reinstated by the Supreme Court of India in STATE OF MADHYA PRADESH v M.V. VYAVASAYA & CO. AIR 1997 SC 993:-

“It has been repeatedly held by this court that the power of the High Court under Article 226 of the Constitution is not akin to appellant power. While exercising this power, the court does not go into the merits of the decisions taken by the authorities concerned but only to ensure that the decision is arrived at in accordance with the principles of natural justice whenever applicable. Further where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact.” Emphasis added

15. In this matter it is not disputed that the 1st Respondent Dispute Resolution Committee had jurisdictions conferred to it by Section 74 of the Elections Act No. 24 of 2011 pursuant to the provision of Article 88(4) (e) of the Constitution of Kenya 2010 and that the exparte applicant presented his complaint to the said bodies who accorded the same a hearing thereby complying with the Rules of Natural Justice since the same received a just and fair treatment. It is therefore not open to this court to go into the merit of the decision itself since under review the court has no power to substitute the decision unlike when the court is dealing with powers of Judicial Review of Constitutional and Statutory provisions.

16. The Exparte Applicant’s main complaint is that the Respondent’s Dispute Resolution Committee decision was prejudicial purporting to irrationally degrade the Exparte Applicant to the office of the County Assembly from National Assembly but as submitted by the Respondent it is clear that the committee had this in mind while making their determination.

“The complainant stated that he went to present his nomination papers to the Respondent for the position of Member of the National Assembly for Embakasi North.”

I am therefore unable to see any prejudice suffered by the Exparte Applicant since the error in stating that he was supposed to present his papers as a Member of County Assembly is one that could be rectified. See MUKANA HOLDINGS LTD v BEAT KOCH (supra)

17. Since there is a dispute on fact as to whether the Exparte Applicant submitted his papers on 2nd June, 2017 and was rejected or whether the applicant failed to appear before the 2nd Respondent as per his affidavit in response it is clear that the issues herein are beyond the scope of Judicial Review. In this I find support in the Supreme Court of India decision in SYED T.A HAQSHBANDI v STATE OF J & K (2003) 9SCC 592 where the court had this to say:-

“Judicial Review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself as such. Critical or independent analysis or appraisal of the material by the court exercising powers of judicial re view unlike case of an appellate court would neither be permissible nor conducive to the interest of either the officer concerned or the system and institution. Grievance must be sufficiently substantiated to have firm or concrete basis on properly established facts and further proceed to be well justified in law for being countenance by the court in exercise of its powers of Judicial Review. Unless the exercise of powers is shown to violate any other provisions of the constitution of India or any of the statutory rules, the same cannot be challenged by making it a justifiable issue before the court.”

18. In the present case the Exparte Applicant was accorded a hearing before the court and upon the material presented, the said committee held that the Exparte Applicant failed to comply with the timelines for submitting nomination papers whereas the Exparte Applicant maintains that his papers were rejected for failure to meet the threshold of supporters, I find that those are issues of facts which is beyond the scope of jurisdiction of this court under judicial review which is only confined to the question of the legality of the decision and if the Dispute Resolution Committee faltered in its wisdom, the court cannot act as super auditor.

19. In the final analysis since the power of the court is only limited to extent of being supervisory in nature, I find no merit in the application herein a+nd is hereby dismissed with no orders as to cost.

DATED, SIGNED and DELIVERED at Nairobi this 21stday of July, 2017.

…………………………

J. WAKIAGA

JUDGE

In the presence of:-

Mr. Aketch for the Appellant

Mr. Tiego for the Respondent

Tabitha court clerk