[2022] KEHC 14306 (KLR)

United Democratic Movement v Independent Electoral and Boundaries Commission & 5 others; Farah & 4 others (Interested Parties) (Election Petition E443 of 2022) [2022] KEHC 14306 (KLR) (Civ) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14306 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Election Petition E443 of 2022

M Thande, J

October 14, 2022

Between

United Democratic Movement

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Office of the Registrar of Political Parties

2nd Respondent

Mandera County Assembly

3rd Respondent

Clerk, Mandera County Assembly

4th Respondent

Governor, Mandera County Government

5th Respondent

Abdow Bishar Maalim

6th Respondent

and

Bishar Hussein Farah

Interested Party

Suban Ahmed Abdinoor

Interested Party

Abdiwelly Haji Bukura

Interested Party

Sokorey Maalim Isaakow

Interested Party

Sahara Adan Mohamed

Interested Party

Ruling

1. Before Court for determination are the Preliminary Objections (POs) by the 1st Respondent, 6th Respondent and 5th Interested Party all dated 27. 9.22. The POs are in opposition to a Petition dated 14. 9.22 filed by the Petitioner in which it seeks the following reliefs:a.A declaration that the nomination of the 6th Respondent and the consequent gazettement by the 1st Respondent was not conducted in accordance with Constitution, the Elections Act and all applicable laws and therefore invalid, null and void.b.A declaration that gazettement of the 6th Respondent on 9th September 2022 as a nominee of the United Democratic Movement Party in Position No. 1 under the Marginalized List youth category for Mandera County Assembly be declared null and void and of no effect whatsoever, the 6th Respondent having been fraudulently included in the gazette notice without having been a member of the Party nor appeared in the Party List submitted to and approved by the 1st and 2nd Respondents.c.The 1st Respondent be ordered to cancel and remove Abdow Bishar Maalim from position No. 1 as being nominated to the Mandera County Assembly under the Marginalized List youth category and instead reinstate Bishar Hussein Farah to position No.1 under the Marginalized List to the Mandera County Assembly youth category as submitted by the Petitioner and approved by the 1st and 2nd Respondents in the original Party List.d.The 1st Respondent be ordered to remove Sahara Adan Mohamed from position No. 2 as being nominated to the Mandera County Assembly under the Gender Top up category and instead restore her to position No. 6 under the Marginalized List Nominees to the Mandera County Assembly as submitted by the Petitioner and approved by the 1st and 2nd Respondents in the original Party List.e.The 1st Respondent be ordered to remove Sokorey Maalim Isaakow from position No. 2 as being nominated to the Mandera County Assembly under the Marginalized List and instead restore her position as the second female in the Gender Top Up list Nominees to the Mandera County Assembly as submitted by the Petitioner and approved by the 1st and 2nd Respondents in the original Party List and uploaded on the IEBC websitef.The 1st Respondent be ordered to reinstate SUBan Ahmed Abdinoor to position No. 2 under the Marginalized List to the Mandera County Assembly to represent the category of Persons with disability (PWD) as submitted by the Petitioner and approved by the 1st and 2nd Respondents in the original party list and uploaded on the IEBC portal.g.The 1st Respondent be ordered to reinstate Abdiwelly Haji Bukura to position No. 3 under the Marginalized List to the Mandera County Assembly to represent the category of Persons with Disability (PWD) as submitted by the Petitioner and approved by the 1st and 2nd Respondents in the original Party List and uploaded on the IEBC Portalh.An order directing the 1st Respondent to correct Gazette Notice No. 10712 of 9th September 2022 and publish an amended Gazette Notice reflecting the names of the Petitioner’s nominees for Mandera County Assembly as submitted by the Petitioner and approved by the 1st and 2nd Respondents in the original Party List and uploaded on the IEBC website.i.An order of injunction do issue restraining and prohibiting the 3rd and 4th Respondents from recognizing, swearing in or in any way allowing the 6th Respondent to assume and take office, or in any way participating or acting as a member of the Mandera County Assembly, drawing a salary or enjoying the perks and benefits of the office of the Member of County Assembly.j.An order of injunction restraining the 6th Respondent from taking oath of office, acting, participating or acting as a member of the Mandera County Assembly, drawing a salary or enjoying the perks and benefits of the office of Member of County Assembly.k.An order of injunction or conservatory order restraining the 4th Respondent from conducting elections of Speaker of Mandera County Assembly pending rectification of the Gazette Notice and swearing in of all the Interested parties as member of the Mandera County Assembly.l.An order of injunction or conservatory order restraining the 5th Respondent from convening the 1st sitting of the 3rd Respondent pending the pending rectification of the Gazette Notice No. 10712 and swearing in of all the interested parties as members of the Mandera County Assemblym.The 6th Respondent be ordered to pay the cost of the petition in any event.n.Any other relief this Honourable Court may deem fit to grant.

2. Also filed is an application of even date brought pursuant to Articles 10, 38(3) (c), 88(4) (e), 90(1) & (2) and 177 of the Constitution, Section 36(4) of the Elections Act, 2011 and Regulations 56(2) of the Elections (General) Regulations. The Petitioner seeks temporary relief pending the hearing and determination of the Petition.

3. The 1st Respondent’s preliminary objection raises the following grounds: -1. That Honourable court lacks original jurisdiction to hear and determine the petition and the application herein challenging the nomination of the County Assembly of Mandera and that the petition ought to be heard and determined by a Resident Magistrate’s Court designated by the Honourable Chief Justice pursuant to section 75(1A) of the Elections Act, 2011 read with Article 87(1) of the Constitution and Regulation 6(1) (b) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. 2.That for the foregoing reason, the petition and the application are incompetent, legally untenable and shall be struck out with cost to the Respondents.

4. The preliminary objection by the 6th Respondent raises the following grounds; -1. That the High Court lacks jurisdiction to hear the matter in accordance with section 75(1A) of the Elections Act and Rule 6(1) of the Elections and Parliamentary and County Elections) Petition Rules, 2017. 2.That the proceedings and petition are fatally defective and ought to be struck out with costs.

5. The preliminary objection by the 5th Interested Party raises the following grounds: -1. That the petition and Notice of Motion application herein as drawn and filed is bad in law, frivolous, vexatious and is an abuse of the process of this Honourable Court and should be struck out in limine.2. That the High Court lacks jurisdiction and therefore has no power to hear and determine any election dispute relating to the validity of the election by nomination of a member of the County Assembly referred to in section 75(1A) of the Elections Act. The same should have ben filed at the Resident Magistrates Court in accordance with section 75 of the Elections Act.3. That the Court of Appeal held that the High Court sitting in the capacity of its original and unlimited jurisdiction under Article 165(3) of the Constitution is not an Election Court as envisaged under Article 87(1) of the Constitution and therefore it cannot nullify or cancel or in any way interfere with an election or nomination of members to a County Assembly.4. That this Honourable Court should accordingly down its tools with respect to this suit and have it struck out for want of jurisdiction since there is no basis for the continuation of the instant proceedings.5. That this preliminary objection has been raised promptly and at the earliest opportunity and it is therefore in the interest of justice that the same is dispensed with on priority.

6. The Petitioner is a duly registered political party. The Petitioner challenges the Party List gazetted by the 1st Respondent on 9. 9.22. The grounds are that the party list it submitted to the 1st Respondent by the Petitioner on 23. 7.22 and published on 27. 7.22 in the Standard Newspaper was altered to include the name of the 6th Respondent who is not a member of the Petitioner as at the date of publication. The Petitioner further contends that the order of the names as published by the 1st Respondent in the said newspaper had been changed without its authorization and/or consent. It is the Petitioner’s contention that the party list published by the 1st Respondent was a forgery and that by publishing the forged list, the 1st Respondent violated the provisions of Articles 10 and 38(3)(c) of the Constitution of Kenya, 2010. The Petitioner further contended that it had rightfully invoked the jurisdiction of this Court as an election Court to revoke the fraudulent gazettement of the 6th Respondent as a nominee to the Madfera County Assembly and to compel the 1st Respondent to gazette the correct list of the Petitioner’s nominees.

7. Parties filed written submissions which were highlighted in Court by parties’ respective counsel. The Petitioner was represented by the firm Issa & Company Advocates while the 1st Respondent was represented by Sheikh & Shariff Advocates. The 6th Respondent was represented by the firm of Ng’etich Chiira & Associates Advocates, LLP while the 5th Interested Party was represented by the firm of Messrs Ngeri, Omiti & Bush Advocates.

8. The Court has duly carefully considered the Petition, the POs, the rival submissions as well as the authorities cited. The following issues fall for determination:i.Whether this court has jurisdiction to hear and determine the petition.ii.Whether this court can transfer the matter to a court with competent jurisdiction.

Whether this court has jurisdiction to hear and determine the petition 9. The POs challenge the jurisdiction of this Court to hear and determine the Petition herein. According to them, this matter should be heard by an election court which is the Resident Magistrate’s Court designated as such by the Honourable Chief Justice. The Petitioner on the other hand contends that this Court is vested with the jurisdiction to hear and determine this matter on the premise that it challenges the breach of the 1st Respondent’s mandate under Article 90 of the Constitution. The question before this Court is whether the 1st Respondent acted outside its constitutional mandate in altering the party list submitted to it by the Petitioner and thereafter published the altered list. Relying on the case of Rahma Issak Ibrahim vs Independent Electoral & Boundary Commission & 2 others [2017] eKLR, counsel for the Petitioner argued that this Court has the requisite jurisdiction to hear and determine the Petition.

10. Article 165(3) of the Constitution confers upon the High Court unlimited original jurisdiction in civil and criminal matters, including the jurisdiction to hear any question respecting the interpretation of the Constitution. This jurisdiction can however be limited by the Constitution and statute in certain instances. The Court may thus only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. This was the holding in the case ofSamuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where the Supreme Court succinctly stated:A Court’s jurisdiction flows from either Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.

11. Similarly, in the case ofEliud Wafula Maelo v Ministry of Agriculture & 3 others [2016] eKLR, the Court of Appeal considered the question of limitation of the jurisdiction of the High Court and stated as follows:“11. The jurisdiction of the High Court in particular matters or instances can be ousted or restricted by statute. In Halsbury’s Laws of England, Volume 10 at paragraph 319, the learned authors state:The subject’s right of access to the courts may be taken away or restricted by statute.” …Paragraph 723 states:“Where a tribunal with exclusive jurisdiction has been specified by a statute to deal with claims arising under the statute, the County Court’s jurisdiction to deal with those claims is ousted, for where an Act creates an obligation to and enforces the performance of it in a specified manner only, the general rule is that performance cannot be enforced in any other manner.”12. In Narok County Council V Trans-mara County Council (supra) this Court held that:“… though section 60 of the Constitution gave the High Court a limited jurisdiction, it did not cloth it with jurisdiction to deal with matters that a statute had directed should be done by a Minister as part of his statutory duty.”13. In determining whether a court has jurisdiction in a particular matter, a court cannot consider the provisions of the Constitution only. Regard must also be taken of relevant statutes. That is what was stated by the Supreme Court in THE MATTER OF THE INTERIM INDEPENDENT ELECTORAL COMMISSION [2011] eKLR:“[29] Assumption of jurisdiction by courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent.”14. Similarly, in SULEIMAN IBRAHIM V AWADH SAID [1963] E. A. 179, Windham, C. J. held that section 33 of the Rent Restriction Act of Tanzania excluded concurrent jurisdiction of the High Court in respect of a matter which could be handled by the Rent Restriction Board.

12. The people of Kenya when enacting the Constitution recognised that disputes relating to elections will inevitably arise. Provision was thus made under Article 87 (1) that Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes. The Elections Act, 2011 is the legislation that was enacted to give effect to the said Article.

13. The 1st Respondent is vested with the mandate to resolve electoral disputes except election petitions and disputes subsequent to the declaration of election results under Article 88(4)(e) and Section 74 of the Elections Act. Article 88(4)(e) provides as follows:(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;

14. Section 74 of the Elections Act is couched in similar terms as follows: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.

15. It is evident from the foregoing, that the mandate of the 1st Respondent to resolve electoral disputes, excludes election petitions and disputes subsequent to the declaration of elections results.

16. The dispute herein relates to the gazette notice of 9. 9.22 by the 1st Respondent, of the nominated members of county assemblies. In particular the Petitioner challenges the gazetted members of Mandera County Assembly on the grounds stated herein. The Petitioner seeks reversal of the gazettement by this Court.

17. It is now well settled that gazettement of nominated members of county assemblies, as in the present case, is an election. The Court of Appeal while considering this very issue in the case ofRose Wairimu Kamau and 3 Others -vs- IEBC, C.A. NO. 169 of 2013 rendered itself as follows:[I]n reaching the conclusion, we are alive to the fact that once nominees to Parliament and County Assemblies under Articles 971(C) and 177(2) respectively have been gazetted....they are deemed elected members of Parliament and the County Assemblies and any challenge to their membership has to be by way of election petitions under Article 105 of the Constitution or Part VIII of the Elections Act as the case may be.

18. And in Rahma Issak Ibrahim vs Independent Electoral & Boundary Commission & 2others[2017] eKLR Mwita, J. reiterated the legal position on the effect of gazettement of nominated members of a county assembly and stated:41. The legal position emerging from the above analysis is that once a member has been gazetted as duly nominated, that becomes an election result and anyone unhappy with that result can only challenge it as an election dispute in an election court.

19. In the case of Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & another [2015] eKLR, the Court of Appeal considered the question of the jurisdiction of the High Court in a dispute concerning gazettement of nominated of members of county assemblies. The Court stated that the High Court lacked jurisdiction and stated as follows:We are cognizant of the principle that upon gazettment of members of the County Assembly, they are deemed to be elected members of the County Assembly. Applying the foregoing dicta and principles of law to the instant case, Section 75 (1A) of the Elections Act expressly indicates that the jurisdiction to consider, hear and determine the question as to the validity of election of a member of County Assembly is vested with the Resident Magistrate’s Court designated by the Chief Justice. The proper and original forum to determine the question of whether the 2nd respondent was validly nominated and gazetted as representative of the marginalized communities in Isiolo County Assembly is the Resident Magistrate’s Court. The learned Judge did not err in interpreting and applying Section 75 (1A) of the Elections Act. We state that the High Court has no original jurisdiction to determine questions of membership to County Assemblies.

20. The Supreme Court also had occasion to consider this very same issue in the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR, and had this to say:(117)It is clear to us that the Constitution provides for two modes of ‘election’. The first is election in the conventional sense, of universal suffrage; the second is ‘election’ by way of nomination, through the party list. It follows from such a conception of the electoral process, that any contest to an election, whatever its manifestation, is to be by way of ‘election petition’.(118)On such a foundation of principle, we hold it to be the case that whereas the Court of Appeal exercised jurisdiction as an appellate electoral Court, it had not been moved as such, in accordance with Section 85 A of the Elections Act, and relevant provisions of the Constitution. The respondents had moved the Appellate Court on the basis that they were aggrieved by the High Court’s decision in judicial review proceedings, in which that Court had declined jurisdiction. This in our view, would have been a proper case for the Appellate Court to refer the matter back to the High Court, with appropriate directions.(119)To allow an electoral dispute to be transmuted into a petition for the vindication of fundamental rights under Article 165 (3) of the Constitution, or through judicial review proceedings, in our respectful opinion, carries the risk of opening up a parallel electoral dispute-resolution regime. Such an event would serve not only to complicate, but ultimately, to defeat the sui generis character of electoral dispute-resolution mechanisms, and notwithstanding the vital role of electoral dispute-settlement in the progressive governance set-up of the current Constitution.

21. The Supreme Court affirmed the legal position of election by way of nomination, through the party list. The Court further affirmed the principle that that any challenge of such an election may only be by way of an election petition.

22. Based on the foregoing, it quite evident that upon gazettement of members of a county assembly who are nominated pursuant to Article 177(2) of the Constitution, such members are deemed to be duly elected and any person aggrieved may only find recourse in a designated election court.

23. Section 75 of the Election Act makes provision for county election petitions. Section 75(1A) provides as follows:A question as to the validity of the election of a member of county assembly shall be heard and determined by the Resident Magistrate's Court designated by the Chief Justice.

24. A reading of the above provision makes it clear that a person wishing to challenge the election of a member of a county assembly as the Petitioner has may only do so in an election court. Such election court is a Resident Magistrate’s Court duly designated by the Hon. Chief Justice. A petition filed in any other court or forum to challenge such election is incompetent for want of jurisdiction.The Petitioner is aggrieved by the gazettement of the nominated members of the Mandera County Assembly claiming that the list of nominees was forged. Applying the principle set out in the cited authorities to the present case, the gazettement on 9. 9.22 of the nominated members of county assemblies was an election. Accordingly, the Petitioner ought to have filed an election petition, which will be heard and determined by such Resident Magistrate's Court as shall be designated by the Chief Justice, pursuant to the Provisions of Section 75(1A) of the Elections Act.

25. In light if the foregoing and Accordingly, duly guided by the Supreme Court in the case of Moses Mwicigi & 14 others, I find that allowing the Petitioner herein to move this Court by way of a constitutional petition in the present circumstances, is to set up a parallel electoral dispute-resolution regime, thereby defeating the sui generis character of electoral dispute-resolution mechanism provided in law. The Court must not allow an electoral dispute to be transmuted into a constitutional petition as sought by the Petitioner herein.

26. Courts have time and again stated that where a clear procedure for redress has been provided by law, such procedure must be followed to the letter. One such case is Speaker of the National Assembly v James Njenga Karume [1992] eKLR where the Court of Appeal stated:In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.

27. The jurisdiction of the High Court in particular matters or instances can be ousted or restricted by statute. This is one of the instances where this Court’s jurisdiction has been ousted. A clear procedure for electoral dispute resolution of the election of a member of a county assembly has been set out in Section 75(1A) of the Elections Act, conferring jurisdiction upon the Resident Magistrate’s Court, as designated by the Chief Justice.

28. Having considered the foregoing, the inevitable conclusion that this Court must draw is that it lacks jurisdiction to entertain the Petition herein. The filing of the Petition before a Court without jurisdiction renders the Petition incompetent. is incompetent. It is trite law that without jurisdiction this Court has no power to make one more step. See the case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi, JA. held as follows:[J]urisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

Whether this Court can transfer the matter to a court of competent jurisdiction 29. The Petitioner urged this Court to transfer the matter to court of competent jurisdiction in the unlikely event that the preliminary objections are upheld. Reliance was placed on the case ofMilkah Nanyokia Masungo vs Robert Wekesa Mwembe & 2 others [2013] eKLR where Gikonyo, J. considered the High Court’s jurisdiction to transfer a petition filed before it, challenging an election of a member of county assembly. The learned Judge transferred the election petition before him and stated:Accordingly, it is hereby ordered that this petition is transferred to the Resident Magistrate's Court, Bungoma Law Courts, as shall be assigned by the Chief Justice to hear and determine the validity of the election of the 1st Respondent as a member of county assembly for Misikhu Ward, Webuye West Constituency in Bungoma County.

30. The 1st Respondent submitted that once a court of law determines it has no jurisdiction on a dispute it has no power in law to take one more step, and ought to down its tools. It was further submitted that the High Court has no power to constitute an election court to which to transfer the matter since such power is vested only on the Chief Justice.

31. Our Courts have in many a decision held that it is illegal for this Court to transfer a matter filed in a court without jurisdiction to another court with jurisdiction. In the case of Equity bank Limited v Bruce Mutie Mutuku T/A Diani Tour & Travel(2016) eKLR, the Court of Appeal held: -In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under Section 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even by their consent confer jurisdiction on a court where no such jurisdiction exists. It is so fundamental that where it lacks, parties cannot even seek refuge under the “O2” principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the situation. In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through a transfer. In Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR, it was held as follows: -“It is therefore trite that where a suit is instituted before a tribunal having no jurisdiction, such a suit cannot be transferred under section 18 aforesaid to a tribunal where it ought to have been properly instituted. The reason for this is that a suit filed in a court without jurisdiction is a nullity in law and whatever is a nullity in law is in the eyes of the law nothing and therefore the court cannot purport to transfer nothing and mould it into something through a procedure known as “transfer”. In other words, courts can only transfer a cause whose existence is recognised by law.”

32. The Court has found that the Petition before it is incompetent having been filed in a court that lacks jurisdiction. The Court, lacking cannot therefore transfer an incompetent suit to a court of competent jurisdiction. Indeed, there exists no competent petition before Court that is capable of being transferred.

33. Further, by purporting to transfer this Petition to another court, this Court would be arrogating to itself the jurisdiction of constituting an election court, a power conferred only upon the Chief Justice, under Section 75(1A) of the Elections Act. In this regard, it bears citing again, the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where the Supreme Court stated:“Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.

34. In the end and in view of the foregoing, I uphold the Preliminary Objections herein all dated 27. 9.22. with the result that the Petition dated 14. 9.22, is hereby dismissed. This being a matter filed in the public interest, I make no order as to costs.

DATED AND DELIVERED IN NAIROBI THIS 14THDAY OF OCTOBER 2022M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Petitioners…………………………………………………………… for the 1stRespondent…………………………………………………………… for the 2ndRespondent…………………………………………………………… for the 6thRespondent…………………………………………………………… for the 5thInterested Party..……………………………………………………..……..Court Assistant