[2022] KEHC 10015 (KLR)

Wachira v Independent Electoral and Boundaries Commission & another (Constitutional Petition E291 of 2022) [2022] KEHC 10015 (KLR) (Constitutional and Human Rights) (18 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10015 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E291 of 2022

AC Mrima, J

July 18, 2022

Between

Agnes Nailantei Shonko Wachira

Petitioner

and

The Independent Electoral and Boundaries Commission

1st Respondent

The Returning Officer, Kasarani Constituency

2nd Respondent

Judgment

Introduction: 1. The gist of this matter is the decision made by the Returning Officer, Kasarani Constituency, the 2nd Respondent herein, refusing to accept the Petitioner’s nomination papers out of the statutory timelines.

2. The impugned decision was unsuccessfully contested before the Independent Electoral and Boundaries Commission’s Dispute Resolution Committee hereinafter referred to as ‘the DRC’) by the Petitioner, hence, the instant proceedings.

3. The Petition is opposed by the Respondents.

The Petition: 4. The Petition is dated June 16, 2022. It was filed contemporaneously with an evenly dated application by way of a Notice of Motion.

5. The application sought conservatory orders barring the Independent Electoral and Boundaries Commission, the 1st Respondent herein, from printing and/or presenting the ballot papers for Member of National Assembly for Kasarani Constituency in the forthcoming General election pending the determination of the Petition.

6. Pursuant to the directions of this Court, both the Petition and the application were heard together.

7. The Petition and the application were each supported by an affidavit sworn by the Petitioner on June 16, 2022as well as a supporting affidavit sworn by one Sammy Wachira Mubea, the Petitioner’s husband and who also serves as the Petitioner’s Chief Agent, on June 16, 2022.

8. The Petitioner also filed written submissions dated June 29, 2022in further support to the Petition and the application.

9. The Petitioner’s case was that the 2nd Respondent erred in rejecting her nomination papers for the elective position of Member of National Assembly for Kasarani Constituency when she presented them on June 6, 2022.

10. The Petitioner deposed that she was cleared by her party, the Chama Cha Kazi and issued with a Nomination Certificate on April 18, 2022. However, prior to her presenting her nomination papers, the Petitioner further deposed that, she was taken ill by Covid-19 and was, on Doctor’s advice, isolated for 7 days as she had previously suffered a similar attack that rendered her admitted in the Intensive Care Unit sometimes in March, 2021.

11. Resulting from the isolation, the Petitioner could not present her papers on the scheduled dates, that was between 29th to 31st May, 2022.

12. It was deposed that given the state of ill-health the Petitioner was in, she sent her Chief Agent who met the 2nd Respondent and explained the situation the Petitioner was in. The Chief Agent deposed that the 2nd Respondent told him that the Petitioner will be allowed to present her nomination papers upon completion of the isolation period.

13. The Petitioner and her Chief Agent posited that when the Petitioner was later cleared from isolation, she presented her papers to the 2nd Respondent, but to their utter shock and surprise the 2nd Respondent refused to accept them on the ground that the Petitioner was late in presenting her papers.

14. Aggrieved by the decision, the Petitioner filed a complaint before the DRC.

15. The complaint was heard and dismissed vide a decision rendered on June 13, 2022.

16. The Petitioner then instituted the instant proceedings.

17. In her written submissions, the Petitioner expounded on the foregoing and referred to several judicial decisions in support of her case.

18. It was submitted that the DRC erred by failing to apply the law in dismissing the complaint by not addressing itself to the doctrine of estoppel given the undertaking given by the 2nd Respondent to the Petitioner’s Chief Agent. Several decisions were also referred to in support of the position.

19. The Petitioner further submitted that the refusal to accept the nomination papers was in violation of her political rights under Article 38 of the Constitution. To that end, the Petitioner prayed that the Respondents be compelled to accept her nomination papers and to include her name in the ballot papers for the Member of National Assembly for Kasarani Constituency in the forthcoming General election.

20. The Petitioner did not pray for costs.

The Response: 21. The Respondents filed a joint response to the Petition and the application. It was a Replying Affidavit by one Chrispine Owiye, the 1st Respondent’s Director of Legal Services. The Affidavit was sworn on June 22, 2022.

22. The Respondents deposed that they complied with the Constitution and the law in rejecting the Petitioner’s nomination papers which were presented out of the legal timelines.

23. On the jurisdiction of this Court, it was deposed that the Court is limited to determining whether the decision was properly taken in accordance with the regulating law and the tenets of natural justice.

24. The Respondents wondered why the Petitioner had not questioned the propriety, process and factual findings of the decision of the DRC contrary to the settled principles on the law on judicial review which deals with the decision-making process as opposed to the merits of the decision itself.

25. Citing the mandatory nature of Regulation 43(2)(g) of the Election (General) Regulations, 2012 and the requirement for a candidate to be represented by a person authorized by the candidate in presentation of nomination papers, the Respondents contended that the law did not require the personal attendance of the Petitioner, hence, the DRC cannot be faulted.

26. Lastly, the Respondents contended that the Petition did not meet the threshold of specificity as laid down in Anarita Karimi Njeru vs. Republiccase.

27. The Respondents filed written submissions buttressing the foregoing. They also referred to several decisions.

28. The Court was called upon to dismiss the Petition.

Analysis: 29. This Court has carefully considered the Petition.

30. The gist of the matter is the rejection to accept the Petitioner’s nomination papers. That was what was challenged before the DRC.

31. Having perused the instant Petition, it behoves this Court to delimit its jurisdiction. This Court dealt with the issue recently in Nairobi High Court Constitutional Petition No. E321 of 2022 David Gakuu Dennis Gakuu Wahome vs. Independent Electoral and Boundaries Commission & Others(unreported) as follows: -165. This Court has, in the first sub-issue, referred to the decision in Sammy Ndung'u Waity vs. Independent Electoral and Boundaries Commission & 3 others case (supra) where the Court made it clear that the High Court may exercise jurisdiction in instances of a party being aggrieved by a decision of the DRC.

166. The Apex Court provided two ways in which the challenge may be mounted to the High Court. The two ways are either vide judicial review or the High Court in exercise of its supervisory jurisdiction.

167. The Black’s Law Dictionary, 10th Edition, defines ‘supervisory control’ at page 1667 as follows: –The control exercised by a higher Court over a lower Court, as by prohibiting the lower Court from acting interjurisdictionally and by reversing its interjurisdictional acts.

168. The US Legal Inc., a leading American legal destination site for consumers, businesses, attorneys, corporations, and anyone interested in the law, or in need of legal information, products or services defines ‘supervisory jurisdiction’ as follows: –Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation.

169. In India, the Supreme Court in Mohd Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566 observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”. The Court further held that the supervisory jurisdiction is ‘not to correct an error apparent on the face of the record, or anything that is much less than an error of law’.

170. The High Court in Australia in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [99]-[100] held that the supervisory jurisdiction is a “defining characteristic” of the Court, and cannot be ousted by statute.

171. In Kenya, the supervisory jurisdiction of the High Court is provided for under Article 165(6) of the Constitution as follows: -The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

172. From the foregoing, it can be summed that the High Court exercises supervisory jurisdiction for purposes of keeping the subordinate courts, tribunals or quasi-judicial bodies within the bounds of their jurisdiction. In the exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order, but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it ought to act in such instances. Further, the supervisory jurisdiction of the High Court is granted by the Constitution and cannot be ousted by a statute.

173. The supervisory jurisdiction is, hence, different from an appellate jurisdiction. The appellate jurisdiction is the power of a higher court to review the decision or change the result of the decisions made by the lower courts. It involves the review of the law and evidence and the power may be provided by the Constitution or statute. A Court exercising an appellate jurisdiction, unlike one exercising supervisory jurisdiction, does not exercise general superintendence over the subordinate court or tribunal. An appellate Court is only limited to the matter at hand.

174. In the case at hand, the law does not expressly provide for any right of appeal in respect of the decisions by the DRC. That is unlike the decisions of the Political Parties Disputes Tribunal which are, by statute, appealable to the High Court with a further appeal to the Court of Appeal.

175. This Court, hence, strongly believes that this is an area which calls for law reform.

176. On the basis of the foregoing, it is the Court’s position that the contention that the only way the Petitioner was to challenge the decision of the DRC was by way of an appeal lacks any legal leg to stand on and is hereby dismissed.

32. In this case, the Petitioner did not institute judicial review proceedings under the Civil Procedure Rules, or under Articles 22 and 23 of the Constitution but invoked this Court’s supervisory jurisdiction over the DRC.

33. The role of this Court is, hence, to ascertain whether the DRC acted within the law. Surprisingly, the DRC was not made a party to the Petition.

34. Be that as it may, this Court has perused the decision of the DRC which was annexed to the Affidavit of Sammy Wachira Mubea. The decision is dated June 13, 2022. However, the proceedings before the DRC were not annexed.

35. In its decision, the DRC dealt with the law regulating the submission of nomination papers. The DRC referred to Regulations 36 and 43(2)(g) of the Election (General) Regulations, 2012 as well as some decisions. In the end, the DRC could not fault the decision of the 2nd Respondent in rejecting to appoint the Petitioner’s nomination papers out of time.

36. In the instant Petition, the Petitioner prayed the following orders: -i.A Declaration that the decisions of the Respondents in refusing to accept the nomination papers of the petitioner, culmination with the decision of June 13, 2022 violated Article 38(3)(c) of the Constitution of Kenya.ii.An Order Of Mandamus directing the Respondents to accept the petitioner’s nomination papers and include her name in the ballot papers for the Member of National Assembly Kasarani Constituency for the August 9, 2022General Elections.

37. In challenging the decision of the DRC dated June 13, 2022, the Petitioner raised mainly two issues. They are that the DRC failed to find that the doctrine of estoppel was applicable in favour of the Petitioner and that the DRC failed to note that IEBC in its Gazette Notice No. 431 dated January 19, 2022 expressly stated that the presentation of nomination papers was to be by the candidate.

38. From the decision of the DRC on record, it appears that the two issues now before this Court were not before the DRC for determination. I say so since none of the issues are part of the decision and the Petitioner has not contended that the DRC never made findings despite raising any or both of the issues.

39. In such a scenario, the supervisory jurisdiction of the High Court under Article 165(6) of the Constitution cannot extend to the new issues now raised in the Petition. As said, the supervisory jurisdiction of the High Court is limited to the manner in which a surbodinate Court or a Tribunal exercising a judicial or quasi-judicial function conducted itself and not otherwise. The DRC cannot, therefore, be faulted in matters which were not before it.

40. This Court, therefore, finds that the jurisdiction of this Court in the unique circumstances of this matter has been wrongly invoked.

41. Be that as it may, even if the jurisdiction of this Court was properly invoked still it is unlikely that the Petition would succeed. I will render the reasons hereunder.

42. On the issue of estoppel, Courts have variously affirmed the position that the estoppel under Section 120 of the Evidence Act, Cap. 80 of the Laws of Kenya cannot operate to oust the provisions of a statute. The Respondents have in their submissions referred to several such decisions. I need not say more.

43. On the contention that IEBC failed to adhere to its Gazette Notice No. 431 dated January 19, 2022, it is worth noting that the Gazette Notice was carried out pursuant to the mandate of the IEBC under Articles 88(4), 97(1)(d), 99 and 101 of the Constitution, Sections 2,16,20, 24, 26, 28, 29, 30, 31, 33, 35, 39, 43, and 74 of the Elections Act., 2011 and Regulations 11(4), 12(1) and Parts III and IV and Regulation 98 of the Elections (General) Regulations.

44. In its heading, the Gazette Notice specifically referred to the Constitution of Kenya, the Elections Act, No. 24 of 2011 and the Elections (General) Regulations, 2012 as amended in 2017.

45. Regulation 38(c) of the Elections (General) Regulations, 2012 provide as follows: -38. General requirements: political party candidates:A nomination paper submitted by a political party candidate to the Commission shall—(a)contain the candidate’s name as it appears in the register of voters;(b)be signed by the candidate and by a proposer and seconder who shall be voters registered in the respective electoral areas, and who shall be members of the political party, and by an authorised official of the political party; and(c)be delivered to the returning officer personally by the candidate or by a person authorised by the candidate in that behalf on the day set for the nomination.

46. Whereas the Petitioner was truly indisposed, she in fact sent her Chief Agent to see the 2nd Respondent where the said Agent informed the 2nd Respondent of the Petitioner’s health condition.

47. The Petitioner did not explain why she could not send the said Agent to present the nomination papers on her behalf. As such, the contention that the 2nd Respondent allowed the Petitioner to present her papers once out of the isolation does not hold. The position in law is that it was not mandatory for the Petitioner to present the papers in person.

48. Regarding the position that the Gazette Notice stated that the presentation was to be made by the Petitioner in person, the said Gazette Notice referred to the entire body of the Elections (General) Regulations, 2012 which included Regulation 38(c) thereof. Further, the said Gazette Notice did not, in any way, oust the operation of the law. It is also to be noted that the Petitioner has not challenged the constitutionality or legality of the Gazette Notice.

49. The DRC did not, therefore, err in finding that the complaint was for dismissal.

50. Having said as much, it is the position that the Petition and the Notice of Motion dated June 16, 2022 are unmerited.

51. Consequently, the following final orders do hereby issue: -a.The Petition and the Notice of Motion dated June 16, 2022 be and are hereby dismissed.b.Costs to be borne by the Petitioner.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JULY, 2022. A. C. MRIMAJUDGE