[2022] KEHC 16078 (KLR)

Wabwile & another v Independent Electoral & Boundaries Commission (IEBC) & 4 others (Constitutional Petition E012 of 2022) [2022] KEHC 16078 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16078 (KLR)

Republic of Kenya

In the High Court at Bungoma

Constitutional Petition E012 of 2022

REA Ougo, J

December 1, 2022

CONSTITUTION OF KENYA 2010 IN THE MATTER OF VIOLATION OF THE CONSTITUTION OF KENYA, 2020 AND DISCRIMINATION OF PERSONS WITH DISABILITY IN THE NOMINATIONS TO BUNGOMA COUNTY ASSEMBLY BY THE INDEPENDENT ELECTION AND BOUNDARIES COMMISSION, FORUM FOR RESTORATION OF DEMOCRACY- KENYA DEMOCRATIC ACTION PARTY OF KENYA AND UNITED DEMOCRATIC ALLOANCE

Between

Adrian Wabwile

1st Petitioner

Titus Ndalu

2nd Petitioner

and

Independent Electoral & Boundaries Commission (IEBC)

1st Respondent

Forum for Restoration of Democracy-Kenya

2nd Respondent

Democratic Action Party of Kenya

3rd Respondent

United Democratic Alliance

4th Respondent

Kenneth Makelo Lusaka, County Governor of Bungoma

5th Respondent

Ruling

1. This ruling relates to the preliminary objections by the 1st, 2nd, 4th and 5th respondents.

2. The dispute subject of the petition herein was occasioned by the presentation of the nomination list by the 2nd, 3rd and 4th respondents to the 1st respondent. The petitioners contends that the 2nd, 3rd, 4th and 5th respondent failed to take into account the requirement to present persons with disability as Members of County Assembly of Bungoma contrary to article 10, 27(8), 54, 73, 81 (b), 90 and 177 (1)(c) of the Constitution. The omission of the persons with disability from the nomination process was illegal irregular and violated political rights of eligible persons with disability stipulated in article 38 of the Constitution. The petitioners also filed a notice of motion seeking an order directed at the respondent to comply with the principles of the Constitutionof Kenya with regard to nomination of persons with disability as members of the County Assembly of Bungoma.

3. The petition prompted the filing of preliminary objections by the 1st, 2nd, 4th and 5th respondents. The 1st respondent filed its preliminary objection on October 12, 2022 on the following grounds:1. That the petition is fatally defective, incompetent, bad in law and an abuse of this honourable court’s process.2. That this court not being an election court under the Election Act, 2011 for the purposes of this petition and the issues rise therein, lacks the requisite jurisdiction to hear and determine this petition.3. That there is clear procedure for resolution of the dispute in this matter.4. That the honourable court does not have jurisdiction to hear and determine the petition herein especially “nullify and declare the nomination list of the members of the County Assemblies published and gazette (sic) by the 1st respondent on behalf of the 2nd -4th respondents” as sought at prayer (b) of the petition.5. That upon gazettement of members of the County Assembly, they are deemed to be elected members of the County Assembly.6. 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.7. That the present petition is an election petition against the elections of the members of the County Assembly of Bungoma disguised as a constitutional petition thereby depriving this court of jurisdiction to hear and determine it.8. That the publication of the Gazette Notice marks the end of the mandate of 1st respondent, regarding the nomination of party representatives, and shifts any consequential dispute to the election courts;9. That the petition herein is filed contrary to clear jurisprudence set out by the Supreme Court in Moses Mwicigi & 14others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR…

4. On October 13, 2022, the 2nd and 5th also raised the following grounds of opposition and notice of preliminary objection:1. That the court lacks jurisdiction to hear and determine the application and the petition in view of the provisions of article 88 (4) (e) of the Constitutionof Kenya 2010, section 74 (1) of the Elections Act2011and section 39 of the Political Parties Act.2. That the entire application is overtaken by events as the action the applicants and petitioners seek to injunct and restrain the respondent from carrying out has already been done.3. That the petitioners have not demonstrated a prima facie case with a likelihood of success to enable them deserve conservatory orders sought.4. That the application and petition is bad in law and incompetent in view of the Supreme Court of Kenya ruling in the case of the Supreme Court Petition No 1 of 2015 Moses Mwicigi and 14 others v IEBC & 5 others.5. That the 5th respondent is wrongly enjoined in the proceedings as he does not play any role in the nomination of Members of County Assemblies.6. That this is an election petition disguised as a constitutional petition.

5. The final preliminary objection was raised by the 4th respondent on October 17, 2022 challenging the jurisdiction of this court on the following grounds:1. That, this honourable court lacks jurisdiction to entertain, hear and determine the petition and the application pursuant to the provisions of sections 75(1A) of the Elections Act….2. That this honourable court lacks the jurisdiction to grant the orders sought in the petition and application pursuant to rule 6(1) (b) of the Elections (Parliamentary and County Elections) Petition Rules, 2017…3. That the petitioner’s application and petition dated September 19, 2022 does not disclose violations of the Constitutionor law.4. That the petitioner’s application and petition dated September 9, 2022 is an abuse of court process.

6. The common thread in the preliminary objections raised by the 1st, 2nd, 4th and 5th respondent is the jurisdiction of this court to entertain the petition and the notice of motion filed by the petitioners. At the heart of every case in the justice system is the question of jurisdiction as it confers to courts the ability, legality, and power to hear a case before it. In Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1 Nyarangi, JA held as follows:“…Jurisdiction 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.”

7. The 1st respondent submitted that the publication in the Kenya Gazette of the nominated Members to the County Assembly of Bungoma in respect to the marginalised list marked the end of elections of the said members to the County Assembly. Any dispute after publication of the names regarding their validity or otherwise should be resolved through an election petition. It argued that the petitioners ought to have initiated the petition as an election petition in the right forum within the stipulated time. 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 (see section 75 (1A) of the Elections Act). Election disputes challenging the election of a member of the County Assembly should be filed before an election court within 28 days after the declaration of the election result. They relied on the case of the Speaker of the National Assembly v Hon James Njenga Karume, Civil Application No 92 of 1992 (2008) 1KLR 425 where the court stated:“…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.”

8. The 1st respondent further argued that the petitioner should have followed the procedure stipulated in the Elections Act, 2011and the Election Regulations to address their grievances.

9. The 2nd and 5th respondent also made submissions on the issue of jurisdiction arguing that this court lacks jurisdiction to determine the dispute before it. It relied on the case ofRepublic v Independent Electoral and Boundaries Commission & 2 others (2013) eKLR where the court observed that:“The composition of party lists and the ranking of the names in such lists is an internal matter to be dealt with by the political parties.”

10. They also relied on the case of Anthony Salau & another v Independent Electoral and Boundaries Commission & 2 others[2013] eKLR where the court dismissed a petition of similar nature as the petitioners filed them in the wrong forum. InIsaiah Gichu Ndirangu & 2others v Independent Electoral and Boundaries Commission & 4 others [2016] eKLR Lenaola J as he then was observed that:“49. My understanding of the laws that I have cited above is that the Legislature intended to enact legislation to govern electoral matters and the resolution of any related disputes therein. Section 74 (1) of the Elections Act and section 4 of the Independent Electoral and Boundaries Commission Act as reproduced above makes it explicit that the Commission shall be responsible for settling disputes arising from or relating to nominations. It therefore follows that where any person has a dispute relating to or arising from any nominations, the first port of call is ideally the Commission…………...53. Based on the foregoing, I am inclined to agree with the respondents’ submissions that this court is not the appropriate forum for addressing the issues raised in the petition. My reasoning is firmly grounded on the nature of the case and the matters raised herein because it is not in dispute that the dispute is in regard to nominations to a County Assembly. The petitioners’ main concern is that the law was not observed by the respondents in regard to the conduct and the final selection of the nominee. This in my mind is one such dispute in regard to nominations that the Legislature contemplated and thus created a dispute resolution body as the first port of call………………………………58. I also do not agree with the contentions by the petitioners that this court should characterize the instant petition as a constitutional dispute instead of a nomination/election dispute. In my view, such characterization would go against the electoral laws and the Constitution which was tailored in such a manner that it intended to have a special dispute resolution mechanism for electoral disputes, nominations being one of them.”

11. The 4th respondent, on the issue of jurisdiction, submitted that the real question before the court is the nomination of members of the County Assembly of Bungoma which has been disguised as an election petition. The Elections Act gives the Magistrates Courts jurisdiction to hear and determine election petitions relating to membership of the County Assembly. They relied on the Court of Appeal case in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR where the court stated:"48. An issue urged by the 1st respondent is whether the threshold for a constitutional petition was met in the petitions filed at the High Court. In our considered view, the claims by the 1st and 2nd respondents not only met the threshold for a constitutional petition but also substantially met the threshold and grounds for an election petition. The substratum of the 1st respondents claim is founded on nomination to the County Assembly using party list as an electoral process. In our view, the undisputed background facts in support of the 1st respondent’s claims in the constitutional petition and his claim founded on nomination to the County Assembly are intertwined and inseparable. Being intertwined and not severable, the specific election dispute resolution mechanism provided under the Constitution and the Elections Act is the procedure to be adopted. The mechanism provided is that an election petition is the only way to challenge post-gazettement electoral disputes.49. On the question whether there is a specific constitutional or statutory bar to the High Court to entertain a constitutional petition on settlement of electoral disputes in relation to Membership to a County Assembly we answer in the affirmative. There is an express statutory bar to the original jurisdiction of the High Court to handle post-gazettement nomination or electoral disputes relating to membership to the County Assembly. The original jurisdiction to hear and determine post-gazettement electoral disputes relating to membership to a County Assembly is vested upon the Magistrates Court. The High Court has appellate jurisdiction in respect disputes relating to post-gazettement of Members to a County Assembly. The express statutory bar is section 75 (1A) of the Elections Act. The section provides:"A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice."

12. The petitioners in their submissions maintained that the matter raised in their application and petition is a constitutional issue. The main issue before the court concerns discrimination against persons with disabilities which is within the jurisdiction of the court; not only are the issues raised touching on the exclusion of persons with disability from the County Assembly of Bungoma but also about the unconstitutionality of the composition of the county assembly.

13. I have considered the arguments by the parties and the main issue in this petition is the nomination of candidates by the 2nd, 3rd and 4th respondents based on their party lists. It is not in dispute that the 2nd, 3rd and 4th respondents submitted to the 1st respondent their party lists for nomination of candidates in the order of priority in which the political parties wanted the members picked as provided in article 90 (2) (b) of the Constitution and section 34 (5) of the Election Act. It is also not disputed that the 1st respondent has already published in the Gazette Notice No 10712 of September 9, 2022 nominated candidates for the 2nd, 3rd and 4th respondent for the Marginalized list and gender top up in the County Assembly of Bungoma.

14. The petition herein was filed on September 20, 2022 after the Members of the County Assembly of Bungoma who were nominated based on the party lists had been gazetted by the 1st respondent. The gazetted nominees are now members of the County Assembly of Bungoma. courts have consistently maintained that once nominees have been gazetted any issue on their nomination can only be challenged by way of an election petition. This was the position in Vitalis Ojuang Odek v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR where the court held that:“9. The petitioner’s claim though based on constitutional principles is an election petition on the basis that it seeks to challenge nomination of persons with disability to the Kisumu County Assembly.10. It is not disputed that the County Assembly nominees have been gazetted by virtue of Gazette Notice No 8330 …. The position concerning gazettement was clearly stated in National Gender Commission v IEBC and another (ruling No 2) Petition 147 of 2013 where the court (Lenaola, Mumbi Ngugi and Majanja JJ) stated as follows,“[11]We have anxiously considered the position of members of the Senate and National Assembly nominated under articles 97(c), 98(1) (b), (c) and (d) of the Constitution. They were gazetted on March 20, 2013 by Gazette Notice No 3508. Upon such gazettement they became members of the respective houses of Parliament. Under article 105 of the Constitution, a question of determination of membership can only be determined by way of an election petition ……. [13] In the case of Kones v Republic and another Ex-parte Kimani wa Nyoike and others (2008) 3 KLR EP 29, the Court of Appeal considered whether the nomination of Hon Kones to Parliament under the former Constitution could be challenged by way of proceedings of judicial review. The court held that, “We think we have said enough to show that a seat in the National Assembly can only be declared vacant under the circumstances stated in the Constitution and through the processes set out therein. That has always been the position taken by the courts in previous decisions. There is, first the case of the Speaker of the National Assembly vs the Hon James Njenga Karume, Civil Application No NAI 92 of 1992 [NAI 40/92 UR] (unreported)………. But the Court of Appeal, consisting of Kwach, Cockar & Muli, JJA did state as follows in their ruling dated May 29, 1992. “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. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”11. …upon gazettement of the County Assembly nominees…they became members of the County Assembly… a question of determination of membership can only be determined by way of an election petition."

15. The 1st, 2nd, 4th and 5th respondents all sought to rely on the Supreme Court decision in Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others [2016] eKLR that explained the process of election through nomination that is finalized by publication of the members in a gazette notice. The court held:“[105]It is clear from the foregoing provisions that the allocation of nomination- seats by theIEBC is a time bound process, that starts with the proportional determination of the number of seats due to each political party. On that basis, IEBCthen ‘designates’, or ‘draws from’ the allocated list the number of nominees required to join the County Assembly. To ‘designate’ or ‘draw from’ entails the act of selecting from the list provided by the political party. It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC, as an integral part of the election process.[106]The Gazette Notice in this case, signifies the completion of the “election through nomination”, and finalizes the process of constituting the Assembly in question. ………[107]It is therefore clear that the publication of the Gazette Notice marks the end of the mandate of IEBC, regarding the nomination of party representatives, and shifts any consequential dispute to the Election Courts. The Gazette Notice also serves to notify the public of those who have been “elected” to serve as nominated members of a County Assembly.”

16. The petitioners in their submissions against the preliminary objections argued that the petition and the application are strictly constitutional petition and that the 1st respondent did not ensure that the 2d, 3rd and 4th respondents complied with articles 10, 27 (8), 54, 73, 81 (b), 90 and 177 (c) of the Constitution of Kenya. On the contrary, I find that the petition is in the nature of an election petition challenging the election of members of the County Assembly of Bungoma through nominations. Although the petitioners have alleged that actions of the respondents amounted to discrimination of persons with disability in violation of article 54 of the Constitution, I find that the provisions of the constitution should not be read in isolation but together with other provisions of the Constitution. This was the holding in Busia County Persons with Disability Network & 4 others v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR where the court stated:"9. Before I conclude this decision let me discuss the application of article 54 of the Constitution relied on by the petitioners to buttress their case. Article 54 is part of part 3 of chapter four of the Constitution which encompasses the bill of rights. article 52(1) provides that part 3 elaborates certain rights to ensure greater certainty as to the application of those rights and fundamental freedoms to certain groups of persons. In this case, the petitioners relied on the fact that they are persons with disabilities. Under article 54(2) of the Constitution, the obligation to increase and ensure representation of the persons with disabilities in public bodies to the extent that they occupy 5% of membership is progressive. This provision elaborates the specific rights geared to protecting persons with disabilities, for example, the right to dignity (article 28) and the right to equality (article 27). Moreover, these provisions must not be read in isolation but together with other provisions of the Constitution that provide for representation of the people in the Parliament and the County Assemblies. The mode contesting elections including the manner of filing petitions are part of the law contemplated by Constitutional imperatives governing elections hence compliance with those provisions cannot be wished away.10. Since the declaration sought seeks to challenge the members of nominated members of the County Assembly, this petition ought to have been filed in the Magistrates Court."

17. In conclusion, I find that this court has no jurisdiction to consider a dispute concerning an election through nomination as the petition ought to have been filed in the Magistrates Court. The result is that the preliminary objections dated 6th, 12th and 13th October are hereby upheld. The parties shall bear their own respective costs.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 1ST DAY OF DECEMBER, 2022. R.E. OUGOJUDGEIn the presence of:1st & 2nd Petitioners in person1st Respondent2ndRespondent3rd Respondent4th Respondent5th RespondentWilkister C/A