[2022] KEHC 11447 (KLR)

Wahome v Independent Electoral and Boundaries Commission & 3 others; Ford Kenya & 3 others (Interested Parties) (Constitutional Petition E321 of 2022) [2022] KEHC 11447 (KLR) (Constitutional and Human Rights) (12 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11447 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E321 of 2022

AC Mrima, J

July 12, 2022

Between

Dennis Gakuu Wahome

Petitioner

and

Independent Electoral and Boundaries Commission

1st Respondent

Independent Electoral and Boundaries Commission- (Dispute Resolution Committee)

2nd Respondent

Returning Officer, Nairobi City County

3rd Respondent

Sakaja Johnson Koskei

4th Respondent

and

Ford Kenya

Interested Party

Cleophas Mutuba Milo

Interested Party

Haman Singh Rawal

Interested Party

United Democratic Alliance

Interested Party

Judgment

Introduction: 1. On 7th June, 2022, the 4th Respondent herein, Sakaja Johnson Koskei, (also known as Sakaja Johnson Arthur) was cleared by Nairobi County, Independent Electoral and Boundaries Commission’s Returning Officer, (hereinafter ‘the 3rd Respondent’ or ‘the Returning Officer’) to run for Nairobi City County Gubernatorial seat upon satisfying, among other legal requirements, that he was a holder of Bachelor of Science in Management Degree from Team University in Uganda and therefore met the basic educational requirements stipulated in Article 180(2) and 193 of the Constitution as read with section 22 of The Elections Act.

2. Dissatisfied with the decision by 3rd Respondent, Dennis Gakuo Wahome, the Petitioner herein, lodged Complaint No. 230 of 2022, Dennis Gakuo Wahome -vs- Sakaja Koskei Johnson & Nairobi County Returning Officer before the Independent Electoral and Boundaries Commission - Dispute Resolution Committee (hereinafter ‘The DRC’ or the ‘2nd Respondent’) contesting the validity of the 4th Respondent’s degree qualification.

3. Upon hearing the dispute on merit, the DRC returned the verdict that the Returning Officer acted within the law in clearing the 4th Respondent.

4. The foregoing events yielded the instant Petition.

5. The Petition is vehemently opposed by all the Respondents and the Interested Parties.

The Petition: 6. Through the Petition dated 27th June, 2022, supported by the Petitioner’s Affidavit deposed to on an even date, the Petitioner herein, Dennis Gakuo Wahome sought to challenge the decision of the DRC.

7. Contemporaneously with the filing of the main Petition was the filing of an application by way of Notice of Motion dated 27th June, 2022. It was supported by the Affidavit of the Petitioner deposed to on even date. The application sought for interim reliefs.

8. On the directions of this Court of 1st July, 2022, the Petition and the Notice of Motion were heard together.

9. The Petitioner grounded his case on the claim that the 4th Respondent did not possess a genuine Degree Certificate since the one he produced before the 3rd Respondent was fake and fraudulent, hence, he did not qualify to vie for the position of the Governor of the Nairobi City County.

10. The Petitioner posited that during the hearing before the 2nd Respondent, neither the 3rd Respondent nor the 4th Respondent produced certified copy of the 4th Respondent’s purported degree.

11. It was the Petitioner’s case that the 4th Respondent’s assertion that he is a graduate of Team University in Uganda is untrue and contradicted by his own public declarations.

12. It was his case that since doubt had been cast on the 4th Respondent’s possession of degree qualification, the 3rd Respondent was under an obligation to investigate and confirm its authenticity.

13. It pleaded that the failure of the 3rd Respondent to exercise its duty to confirm authenticity was an action outside the law.

14. The Petitioner further took issue with the DRC’s finding that the 4th Respondent had discharged his burden of proof upon referring to the graduation list and photographs when in fact no photographs had been adduced before the DRC.

15. In respect of the graduation list, it was the Petitioner’s case that its reliance in absence of a certified copy of the purported degree was irregular.

16. On the foregoing, the Petitioner posited that burden of proof remained on the 4th Respondent to demonstrate qualification.

17. Separately, the Petitioner posited that the 2nd Respondent failed to make any finding on the 4th Respondents reliance on Degree obtained from University of Nairobi in for the elections of the year 2017.

18. It was the Petitioner’s case that the 2nd Respondent is an inquisitorial tribunal mandated by law to inquire into the validity of the Returning Officer’s decisions and admit all evidence that would enable it conclusively and accountably determine any complaint relating to nominations.

19. The Petitioner claimed therefore that, the 2nd Respondent assumed an adversarial role thus unfairly expunging the Petitioner’s affidavit offering further clarity on the 4th Respondent’s degree qualification.

20. On the foregoing factual basis, the Petitioner asserted that the finding by the DRC that it had no mandate to conduct investigations to ascertain authenticity of the 4th Respondent’s Degree and the manner in which it enabled the 1st and 3rd Respondents to conduct nominations, fell below the threshold set out in Article 88(e)(v) of the Constitution.

21. The Petitioner stated that the failure to verify the degree certificate purportedly issued by Teams University made 1st and 3rd Respondents complicit to a fraud perpetrated by the 4th Respondent in violation of Article 88(4) of the Constitution.

22. It was its case further that by failing to properly apply the legal and evidentiary principles of the shifting of burden of proof, the 1st and 2nd Respondents violates the Petitioner’s right to a fair hearing guaranteed under Article 50(1) of the Constitution.

23. In the end, the Petitioner prayed for the following orders in the application: -1. Spent2. That pending the hearing and determination of this Application, this honourable Court be pleased to grant conservatory Orders restraining the 1st respondent from printing ballot papers for the position of County Governor, Nairobi City County in the General Election scheduled for 9th August 2022. 3.That pending the hearing and determination of the Petition, this honourable Court be pleased to grant conservatory Orders restraining the 1st respondent from printing ballot papers for the position of County Governor, Nairobi City County in the General Election scheduled for 9th August 2022. 4.Spent5. That the Costs of this Application be provided for.

24. In the main Petition, the Petitioner prayed for the following reliefs: -a.A declaration that the decision of the 2nd Respondent in dispute resolution Committee at Nairobi in Complaint No. IEBC/DRC/CRGE/230/2022: Dennis Wahome -vs- Sakaja Koskei Johnson & The Nairobi County Returning Officer, Independent Electoral & Boundaries Commissions violated the Petitioner’s right to fair hearing guaranteed under Article 50(1) of the Constitution.b.A declaration that the 1st and 3rd Respondents have a constitutional duty to conduct enquiries so as to ascertain the authenticity of documents submitted by persons wishing to be nominated to run for elected offices.c.A declaration that the nomination of the 4th Respondent to vie for the position for the Governor, Nairobi City County by the 3rd respondent was irregular null and void as the 4th Respondent does not possess the qualifications required by Article 193(1)(b) of the Constitution as read with section 22(2) of the Elections Act No. 24 of 2021. d.An order of Certiorari bringing to this Court, for purposes of quashing the decision of the 3rd Respondent made on 7th June 2022 nominating the 4th Respondent as a candidate for the election for Governor Nairobi City County scheduled to take place in 9th August 2022. e.An order of mandamus compelling the 1st & 3rd Respondents to remove the 4th Respondent as candidate for the election for the Governor Nairobi City County scheduled to take place in 9th August 2022. f.Costs of this Petition.

The Petitioner’s Submissions: 25. The Petitioner further urged its case through written submissions dated 2nd July, 2022. In highlighting, the Petitioner’s Counsel Mr. Nyamodi reiterated that the Petition challenges the 2nd Respondent’s decision primarily on three grounds namely; improperly shifting the burden of proof; failure to uphold fair trial rights and the 4th Respondent’s failure to attain the threshold in Article 88 of the Constitution on settlement of electoral disputes.

26. On the preliminary issue of jurisdiction Mr. Nyamodi stated that by virtue of Article 165(3) and (6) of the Constitution, this Court has jurisdiction over the matter. Support to that end was found in the decision in Diana Kethi Kilonzo & another -vs- Independent Electoral & Boundaries Commission & 10 others [2013] eKLR.

27. It was his case that under Article 88(4) of the Constitution as mirrored in Section 74 (1) of the Elections Act, No. 24 of 2011, the 1st Respondent has the mandate to settle all electoral disputes including disputes relating to or arising from nominations but excluding election petitions and disputes after the declaration of election results.

28. He found support on the Supreme Court decision in Mohammed Abdi Mohhamud -vs- Ahmed Abdullahi Mohammed & 3 Others among other decisions to buttress the fact that decisions emanating from the 2nd Respondent lie to the High Court by way of Constitutional Petitions. In the case it was observed as follows;[80]On the basis of the foregoing reasoning, we find and hold that both the Election Court and the Court of Appeal wrongly assumed jurisdiction, in determining what was clearly a pre-election dispute, regarding the academic qualifications of the Applicant/Petitioner. However, as our principle number (v) (above) stipulates, an Applicant/Petitioner's inaction does not prevent him from presenting the dispute for resolution before the High Court, sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution.

29. In rebutting the bar of res-judicata in the Petition, it was his case that the 2nd Respondent is not the same as the Court and the invocation of the principle does not apply.

30. Counsel further urged the Court to disregard the new materials introduced in the Petition that were not raised before the 2nd Respondent. Reliance to that end was placed on the decision in Judicial Review case in Rep -vs- IEBC ex-parte Wavinya Ndeti (2017) eKLR where it was observed;154. That parties cannot raise issues, other than those which were raised before the IEBC Committee, before this Court was appreciated by learned counsel for the Respondent who urged the Court to ignore issues of res judicata and jurisdiction as the same were not issues which were raised before the Committee.

31. On the foregoing, it was submitted that in the instant Petition, the 4th Respondent filed a Replying Affidavit and attached, a copy of the rules of procedure on settlement of Disputes, a letter from the Commission for University Education, A letter from the Team University to the National Council for Higher Education and A copy of an extract of the alleged Graduation booklet from Team University's 4 Graduation Ceremony held on 21st October, 2016.

32. However, he submitted, before the DRC, the 4th Respondent filed a letter from the Commission of University Education, a statutory declaration form duly filled and stamped and a copy of his passport.

33. Based on the decision in Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR, it was submitted that the 4th could not introduce new evidence that was not before the 2nd Respondent and as such are not admissible is since it would be tantamount to granting the 3rd and 4th Respondents a chance to represent their case afresh and this Honourable Court would be stepping into mandate of the 1st Respondent.

34. On the aspect of shifting of burden of proof, it was his case that the burden shifted to the 4th Respondent to adduce evidence whether he had graduated on 21st September 2022, a fact which the 2nd Respondent did not make any findings on. Support to that end was found in the decision in Raila Amolo Odinga & another -vs- Independent Electoral and Boundaries Commission & 2 others [2017) eKLR.

35. It was his case that upon the finding by the 2nd Respondent that the Petitioner had discharged the burden of proof by producing the 4th Respondent's Nomination Declaration Form from 2017, the burden lay with the 4 Respondent to produce relevant evidence in rebuttal

36. Counsel further submitted that it was wrong for the 2nd Respondent to make a finding that there were photographs by the 4th Respondent as proof of graduation yet there were no photographs of the graduation just an advertisement to that effect.

37. He asserted that the shifting of the burden of proof back to the Petitioner on the basis of the 4 Respondent's list without making a finding on the two conflicting graduation lists before it, left the contested issues of fact undetermined.

38. Counsel found support in the decision in Ethics and Anti-Corruption Commission (The legal successor of Kenya Anti-Corruption Commission) -vs- Stanley Mombo Amuti [2015] eKLR where it was observed;(31)In our own assessment of the matters that were before the trial court, and with tremendous respect to the learned judge, the evidence that was before the judge was not given any consideration...Speculation and apprehension rarely have a place in a court of law; the judge ought to have examined the evidence that was before court and to apply it against the provisions of the Constitution instead of postulating an assumption in theory…”

39. Based on foregoing arguments Counsel submitted that the Petitioner’s fair hearing rights under Article 50(1) of the Constitution were violated by the 2nd Respondent’s exclusion of evidence before it.

40. It was further his case that the Petition was not about an interrogation into the question whether the 4th Respondent has a degree, rather, it pertains why there was non-disclosure of that fact.

41. On the role of the 1st Respondent of clearing candidates, Counsel submitted that the IEBC must confirm that the candidates it clears have valid documentation in support of their candidature.

42. Counsel submitted that the IEBC failed to discharge that duty in respect of the 4th Respondent in violation of Article 81(e)(5) of the Constitution.

43. It was his case that the Petitioner’s case that the 4th Respondent failed to produce the entire graduation booklet and that he only provided only provided an alleged excerpt of the graduation list which is fake.

44. It was urged that Respondent has failed to produce evidence of the existence of any classmates, lecturers and further that the Degree of Bachelor of Science in Management '(External)' does not exist.

45. It was submitted that the 4th Respondent only travelled to Uganda once between the year 2012 and 2016, the period during which he alleges to have undertaken the Team University.

46. In a bid to lend credence to the inauthenticity of the Degree certificate, it was submitted the document presented by the 4th Respondent as a degree certificate allegedly from Team University, was printed on Sunday 29th May 2022 at 10:00pm, and not the alleged graduation year 2016.

47. It, therefore, was the Petitioner’s submission that clearance of the 4th Respondent was void. Reliance to that end was placed on the decision in Dr. Thuo Mathenge another-vs- Nderitu Gachagua & 22 others [2013) eKLR.

48. In challenging the 2nd Respondent’s finding that the 3rd Respondent was under no obligation to conduct an enquiry to ascertain the authenticity of 4th Respondent’s Degree, the Petitioner submitted that the 2nd Respondent enabled the 1st and 3rd Respondents to conduct the nomination of the 4th Respondent in a manner that fell below the threshold for the conduct of elections set out in Article 81(e)(v) of the Constitution.

1st Respondent’s case: 49. The 1st Respondent, The Independent Electoral & Boundaries Commission opposed the Petition through the Replying Affidavit of Chripine Owiye, the Director in charge of Legal Services, deposed to on 1st July 2022.

50. It was his deposition that The Petitioner has not demonstrated any violation/breach of his or any other person's fundamental rights and freedoms.

51. It was his case the 3rd Respondent's decision to register the 4th Respondent as a candidate was proper and lawful based on the material presented before him by the 4th Respondent on the day of registration.

52. He deposed that and there was no complaint before the 3rd Respondent at the time he registered the 4th Respondent as a candidate on the authenticity of his degree certificate.

53. In respect of the impropriety of the proceedings before the 2nd Respondent, Mr. Owiye stated that the allegation by the Petitioner are not true as the role of the 3nd respondent are well spelt out in Article 88 of the Constitution of Kenya, 2010, Section 74 of the Elections Act 2011, Section 4 of the Independent Electoral and Boundaries Commission Act and the Rules on Settlement of Disputes formulated under the Elections Act.

54. It was his position that as a quasi-judicial body, the 2nd Respondent made decisions based on the material placed before it by the parties as at the time of that hearing.

55. He deposed further that in observance to the principle of equality of arms, the Petitioner's attempt to file additional material on the morning of the hearing was rejected by the 2nd Respondent and each of the parties was accorded reasonable opportunity to present their respective cases from the commencement of the proceedings and throughout the subsequent steps.

56. Mr. Owiye drew the Court’s attention to the documents at page 179 to 191 of the Petition and stated that same had been rejected by the 2nd Respondent and as such was not part of the record.

57. He rejected the Petitioner’s attempt to admit mew material and deposed that it is an invitation for the court to wrongly exercise first instance jurisdiction.

58. It was his case that the additional material is synonymous to be inviting the Honourable Court to reappraise the evidence as though it was exercising appellate jurisdiction over the decision of the 2nd Respondent and to be inviting the Court to subsume itself into the role of the 2nd and 3rd Respondents (as the Returning Officer and Dispute Resolution Committee) and exercise first instance jurisdiction by considering material that was not before the 2nd Respondent.

59. Mr. Owiye further rebutted the call by the Petitioner to have the 2nd Respondent authenticate qualifications by stating that it would be absurd and a logistical nightmare for the 1st Respondent to conduct forensic examination of over 20,000 aspirants who present themselves for registration in a period of 8 days.

60. It was his case that the 3rd Respondent carried out all the steps necessary to discharge his duty under section 22(2) of The Elections Act, 2011 and regulation 47 of the Elections (general) Regulations.

61. In the end he stated that the Petitioner was an abuse of court process and ought to be dismissed with costs to the Respondents.

3rd Respondent’s case: 62. The 3rd Respondent, Gogo Albert Nguma, the Nairobi County Returning Officer responded the Petition through his Replying Affidavit deposed to on 1st July 2022.

63. He deposed that the 4th Respondent presented himself for the position of Governor of Nairobi City County and to that end, submitted a complete set of documents which were; a Nomination paper form 17, Statutory Declaration (duly signed) form 19, EACC self-declaration form duly stamped by EACC, Electoral Code of Conduct and Original University Degree and a copy certified by the University or the Commission for university for degrees obtained abroad.

64. It was his case that in observance of Regulation 43 of the election (General) Regulations he discharged his mandate and had no grounds upon which he could hold the nomination papers of the 4th Respondent to be invalid.

65. He deposed that his mandate was to ensure that the copies of certificates of the educational qualification submitted are duly certified; and ensure that, in case the educational qualification has been obtained from outside the country, the candidate presents a letter confirming the authenticity of the body that issued the certificate from the Commission for University Education.

66. It was his case that he followed procedure and requirements of the law as provided for under section 22(2) of the Elections Act and Regulation 47 of the Election (General) Regulations (2012).

The 1st & 3rd Respondents’ Submissions: 67. The 1st and 3rd Respondents filed joint submissions dated 3rd July 2022 and were highlighted by its Counsel Mr. Gumbo.

68. On the issue that the 3rd Respondent ought to have verified the qualification of the 4th Respondent, it was submitted that the Retuning officer complied with Regulation 33 of the Elections (General) Regulations 2012.

69. It was its case that the 3rd Respondent was under no obligation constitutionally or statutorily to verify authenticity of the 4th Respondents documents.

70. He maintained that on a prima-facie basis, the 4th Respondent presented a valid certificate and had no power to investigate its authenticity. To bolster his position, he referred the Court to the decision in Ethics and Anti-Corruption Commission v Granton Graham Samboja & another; Kenyatta University & another (Interested Parties) where the Court held as follows: -The Constitution mandate of the IEBC it appears does not include authenticating academic certificates. It therefore follows that the 2nd Respondent, investigate and/or determine the validity or otherwise of the certificates presented by IEBC, lacks power to the intending candidates as long as on the face of it, the candidate presents a prima-facie valid document.

71. To further back the foregoing, the decision in George Mike Wanjohi v. Steven Kariuki & 2 Others [2014] eKLR it was observed that it was submitted that the returning officer could only exercise power conferred upon him by the law.

72. It was further submitted that the 2nd Respondent as an impartial umpire could only examine the material presented by the parties in support and opposition of the complaint.

73. It was it case that it made a determination dismissing the Petitioner’s complaint by analysing the record that was before it at the time and in accordance with of Article 88 of the Constitution of Kenya, 2010, Section 74 of the Elections Act 2011, Section 4 of the Independent Electoral and Boundaries Commission Act and the Rules on Settlement of Disputes formulated under the Elections Act.

74. On the foregoing it was its case that it could not set the agenda for the disputants on the Petitioner’s behalf. He referred to the decision in Constitutional Petition E073 of 2022 Hon. Sabina Chege v Independent Electoral & Boundaries Commission KEHC 239 (KLR) where it was held that the IEBC is not one of the entities which the constitution bestowed any powers to summon witnesses in the course of undertaking investigations.

75. To close the issue, it was submitted that the 2nd Respondent only performs an adversarial function as opposed to inquisitorial one as proposed by the Petitioner.

76. On the issue of this Court’s jurisdiction, the 1st & 3rd Respondent submitted that the instant Petition has mutated and is at complete variance with what was presented before the 2nd respondent.

77. It was submitted that the dispute has turned into one of forgery of academic papers.

78. Further it was their case that the Petitioner has introduced additional material that was not before the 2nd Respondent. They claimed that the issue before this Court should be exactly as presented in before the DRC.

79. They claimed that this Court’s jurisdiction as a court first instance would be wrongly invoked on matters reserved for a quasi-judicial body or administrative process.

80. It was his case that the Petitioner admitted the supervisory Jurisdiction of this Court and as such the proper avenue for challenging the decision of the 2nd Respondent lied at the Judicial Review Court.

81. It was their submission that a Court in exercising judicial review jurisdiction exercises a very restrictive jurisdiction and in the instant dispute what is being challenged is the decision of the 2nd Respondent and not that of the 3rd Respondent. It was urged that the Petition was an invitation to reopen the decision of the 3rd Respondent when the same was considered before the 2nd Respondent and as such is res-judicata.

82. Support for the foregoing was sourced from the Supreme Court decision in Sammy Ndung'u Waity Independent Electoral and Boundaries Commission & 3 others [2019] eKLR where it was held as follows:Where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 164(3) and (6) of the Constitution, The High Court shall hear and determine the dispute before the elections in accordance with the constitutional timelines.

83. In the end it was prayed that the Petition be dismissed as Petitioners had not demonstrated grounds to support their case.

2nd Respondent’s case: 84. In opposition to the Petition and the Application, the Independent Electoral and Boundaries Commission - Dispute Resolution Committee filed Grounds of Opposition dated 3rd July 2022.

85. It was its case that based on the material before it, its decision was lawful fair and unbiased and that the Petitioner has not demonstrated any violation of his fundamental rights and freedoms to warrant the grant of the orders prayed for.

86. He urged the Court to dismiss the Petition with costs for abusing the Court process.

87. The 2nd Respondent did not file written submissions to support its arguments.

The 4th Respondent’s case: 88. The 4th Respondent opposed the Petition through his Replying Affidavit deposed to on 1st June, 2022.

89. It was his case that the Petitioner was driven by ulterior motives acting at the behest of his political competitors keen on usurping the sovereign power of the residents of Nairobi County to exercise their democratic right under Article 38 to elect their Governor of choice in a democratic process.

90. He deposed that the Petitioner’s suits challenging the validity of his academic qualifications are deliberately and primarily calculated to subject him to public humiliation, embarrassment and unreasonably restrict his political and social rights guaranteed under Article 38 of the Constitution.

91. It was his case that the Court ought to take judicial notice of the fact that the documents sought to be relied upon by the Petitioner including purported immigration records and alleged jubilee Party nomination applications dating 2016 are unconnected to his underlying investigation.

92. It was his case that the Petition is scandalous, frivolous, vexatious and an abuse of this Honourable Court’s process. e deposed further that it offends the precision requirement as set out in Anarita Karimi Njeru v Republic [1979] eKLR.

93. Mr. Sakaja deposed that since the Petition is a pre-election dispute arising out of a nomination exercise that was heard and determined in accordance with Article 88 as read together with section 74 of the elections Act and the enabling subsidiary rules and regulation, it was res-judicata.

94. It was further his case that the Petition is a disguised appeal against the decision of the IEBC Disputes Resolution Committee when no such appeal has been properly filed.

95. He maintained that the dispute surrounding his candidature was heard and determined in accordance with Article 88 of the Constitution as read together with section 74 of the elections Act.

96. It was his case that the Commission for University Education (CUE), pursuant to its application confirmed from Teams University that indeed the institution was accredited and that he was admitted there and awarded the requisite qualifications.

97. He deposed further that on 13th June, 2022, CUE issued a further confirmation to the Ethics and Anti-Corruption Commission affirming the validity and recognition of his academic credentials, and as such he submitted before the 3rd Respondent his academic credentials and all other relevant documents, upon which he was cleared to vie as a gubernatorial candidate for Nairobi City County.

98. He asserted that that upon his clearance that the Petitioner lodged the Complaint before the 3rd Respondent where upon close of pleading, the petitioner went on a fishing expedition and caused CUE to purported revoke the recognition of his degree without any substantial reason.

99. It was his case that in response to the revocation he instituted Judicial Review Case HCJR/E087/2022 but before it could be heard the CUE withdrew revocation of its recognition.

100. On the foregoing turn of event, he stated that neither before the 2nd Respondent, nor in the instant proceedings has the Petitioner placed any evidence upon which he seeks to declare his nomination irregular or void for lack of academic qualifications.

101. In the end he deposed that he is not in any way connected to the nomination application declaration Form submitted to Jubilee Party in the year 2016 purporting that he graduated from Nairobi University.

102. He urged the Court to dismiss the Petition with costs.

The Submissions: 103. The 4th Respondent filed written submissions dated 3rd July 2022 to further urge its case.

104. He buttressed the claim of res-judicata on the basis that The Petitioner instituted the complaint before the 2nd Respondent where the Committee extensively and conclusively delivered over the matter therein finalizing on the same and that the parties there in were the same as the ones herein.

105. It was submitted that the purpose of res judicata is to bring an end to litigation. The Court was referred to Court of Appeal in the case of Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others (2017) eKLR, where it was observed;The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the specter of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court.

106. It was the Petitioner’s submission that the Petition is a disguised appeal from the dispute before the 2nd Respondent and was inviting this court to sit as an Appellate court.

107. The 4th Respondent further relied the Supreme Court decision in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 others (2019) eKLR to drive home the point that where a pre-election dispute has been resolved, there dispute therein should not be a ground in a petition to the election court;Where a pre-election dispute has been conclusively resolved by the IEBC, PPDT, or the High Court sitting as a judicial review court, or in exercise of its supervisory jurisdiction under Article 165 (3) and (6) of the Constitution, such dispute shall not be a ground in a petition to the election court.

108. On the foregoing, it was the 4th Respondents case that the Petition is neither invoking the supervisory nor the Appellate jurisdiction of this court hence is res judicata.

109. Separately, the 4th Respondent reiterated the that the Petition failed to meet the precision threshold in Anarita Karimi Njeru -vs- Republic [1979] eKLR as upheld in Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 others [2013] eKLR.

110. In response to the material provided to the Court, the 4th Respondent submitted that the Petitioner failed to disclose the sources of his information in the Affidavit contrary to the provisions of Order 19 Rule 3 (1) of the Civil Procedure Rules

111. It was his case that material is of no probative value and should not be admitted as evidence. Reliance was placed on the decision in Crossley Holdings Ltd vs Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Cooperatives & 3 0thers (2021) eKLR where it was observed;Failure to disclose the source of information makes the Affidavit worthless.

112. It was it case that the whole Affidavit is defective and hence incompetent.

113. In opposition to introduction to new evidence the 4th Respondent submitted that the Petitioner in his supplementary affidavit did not make a formal application and has not given sufficient reason.

114. It was submitted that the additional evidence was meant to fill gaps in the Applicants Application and Appeal, as a result of his failure to disclose all the material information within his knowledge initially. He urged the Court to dismiss the Supplementary Affidavit.

115. The 4th Respondent further argued that the Petitioner had not discharged the burden of proof on him in respect of inauthenticity of his degree certificate. Reliance was place on the decision in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR, where it was observed that: -The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.

116. The 4th Respondent further submitted that suit has been overtaken by events since he had been procedurally cleared by the CUE in accordance to regulation 47 of the Elections (General) Regulations 2012.

117. While relying on the decision in Ethics and Anti-Corruption Commission -vs- Granton Graham Samboja & Another ; Kenyatta University & Another (Interested Parties) [2021) eKLR where it was held that, the commission lacks the power to investigate and/or determine the validity or otherwise of the certificates presented by the intending candidates, the 4th Respondent submitted that 1st Respondent acted within the law and in accordance to its mandate and is now functus officio as far as the authenticity of the his degree is concerned.

118. In the end, the Petitioner urged the Court to stop the Petitioner from using Judicial Process as alley to settle political scores.

119. He prayed that the Petition be dismissed as it was a violation of his constitutional rights under Article 38 of the Constitution.

The 1st & 2nd Interested Party’s case: 120. Cleophas Miio and Ford Kenya Party opposed the Petition and the Application through written submissions dated 2nd July 2022.

121. It was their case that the Conservatory orders asked were wide sweeping and would be prejudicial to the 1st and 2nd Iterated Parties rights that if granted result in constitutional crisis because of the negative public effect of Orders.

122. It was its case that the it was for public good and public interest the preservation of socio-political economic interests that the orders are not granted.

The 3rd Interested Party’s case: 123. Herman Singh Grewal, the 3rd Interested Party opposed the Application and the Petition through written submissions dated 3rd July 2022.

124. It was his case that granting the orders in the Application would cancel the printing of ballot papers and in turn adversely affect his candidature despite having been cleared to run for Governor of Nairobi City County.

125. He submitted that he decision by the 2nd Respondent has not been appealed against and as such, the instant Application and Petition have been brought in contravention of the law for irregularly seeking adverse orders in a suit disguised as an appeal when no such appeal against the Complaint has been properly filed.

126. The 3rd Respondent further submitted that this Court ought not to allow the Petitioner in this matter for lack of locus standi since personal disputes should not be filled as public interest matters. To that end he referred to the decision in Randu Nzai Ruwa & 2 Others v secretary, the IEBC & 9 Others [2019] eKLR and the one in Civil Appeal 176 of 2014 Ferdinard Ndung’u Waititu v Benson Riitho Mureithi (suing on his behalf and on behalf of the general public) & 2 others [2018] eKLR) where in the former it was served;The Constitution today gives a standing to any member of the public who is not a mere busy-body or a meddlesome interloper, and who acts in good faith to institute proceedings challenging any violations under the Bill of Rights.

127. The 4th Interested Party did not file any response to the Petition and the application.

Issues for Determination: 128. On careful reading of the material presented before Court by the parties including the submissions and the decisions referred to, this Court discerns the following issues for determination: -a.Whether the jurisdiction of the Court has been properly invoked.b.In the event issue (a) is answered in the affirmative, a brief look at the principles of constitutional interpretation.c.Whether the proceedings before the DRC were conducted in contravention of Article 50(1) of the Constitution and the applicable principles on burden of proof.d.Whether the nomination of the 4th Respondent to vie for the position for the Governor, Nairobi City County by the 3rd Respondent was irregular, null and void as the 4th Respondent does not possess the qualifications required by Article 193(1)(b) of the Constitution as read with Section 22(2) of the Elections Act.

129. I will deal with the issues in seriatim.

Analysis and Determination: (a) Whether the jurisdiction of this Court has been properly invoked: 130. The jurisdictional challenge in this matter has been raised on three fronts thereby yielding to the following three sub-issues: -i.Whether the matter is res judicata;ii.Whether the challenge to the impugned decision of the IEBC Dispute Resolution Committee ought to have strictly been by way of appeal;iii.Whether the Petition meets the precision threshold.

131. Before I deal with sub-issues, I will, albeit briefly, look at the concept of jurisdiction.

132. The Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8th February, 2022 spoke to the doctrine of jurisdiction in general as follows: -36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.37. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders 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.38. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.39. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.40. In Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:(68). A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

133. With the foregoing, I will now deal with each of the sub-issues: -

Whether the matter is res judicata: 134. The successful raising of the plea of res judicata is a complete bar to the jurisdiction of a Court. As such, I will look at the law on the doctrine.

135. The doctrine of res judicata is not novel. Its genesis is in Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya which provides that: -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.

136. The Supreme Court in a decision rendered on 6th August, 2021 in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR comprehensively dealt with the different facets making up the doctrine of res judicata.

137. In the first instance, the Apex Court framed the issues for determination as follows: -a)Did the High Court procedurally consider the plea of res judicata?b)Did the finding by the High Court on res judicata infringe on the Petitioner’s right to fair hearing condemning them unheard?c)Were the learned Judges of the Court of Appeal justified in holding that the doctrine of res judicata applied to the current case; was the Paluku case the same as the Appellants’ herein?d)Is this doctrine of res judicata applicable to constitutional litigation and interpretation, just as in other criminal and civil litigation?e)If the doctrine of res judicata is applicable to constitutional matters with the rider that it should be invoked in constitutional litigation only in the rarest and clearest of cases, on whom lies the burden of proving such rarest and clearest of cases?f)What constitutes such “rarest and clearest” of cases?g)Who bears the costs of the suit.

138. On the procedure for raising the plea of res judicata, the Supreme Court alluded to the position that the plea is anchored on evidential facts and that such facts ought to be properly raised in a matter. In that case, the plea of res judicata had been raised by way of Grounds of opposition and in the Replying Affidavit.

139. The Court, in dismissing the argument that the issue was improperly raised before Court, stated as follows: -(53)Instead, and contrary to the Appellants submissions, the plea of res judicata was raised through both grounds of opposition and replying affidavits in response to the Appellants application. It is also evident that through the Replying Affidavits of the 3rd and 4th Respondents, evidence by way of the Judgment of JR No. 130 of 2011 was introduced through an affidavit to bolster the plea of res judicata.(54)It is further evident that the Appellants were not condemned unheard or shut out from the proceedings. The proceedings demonstrate that the Court accorded the Appellants the two justiciable elements of fair hearing: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable.(55)This ground of appeal must therefore fail.

140. On whether the doctrine of res judicata applies to constitutional Petitions, the Supreme Court endeavoured an extensive discussion and comparative analysis in various jurisdictions. It also captured the various opposing schools of thought on the issue.

141. In the end, the Court found that the doctrine, rightly so, applies to constitutional Petitions. This is what the Court partly stated: -81. We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively………(82)If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.

142. The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows:(86)We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.

143. On the commonality of the parties, the Court noted as follows: -(93)The commonality is that the Appellants herein and the Applicants in Jr 130 of 2011 were persons, juridical and natural, engaged in the business of clearing and forwarding of goods for various importers of goods destined to the Democratic Republic of Congo. They have the same interests and therefore the raise the complaints regarding the two certificates, FERI & COD. The answer is in the affirmative and we find we cannot fault the High Court or the Court of Appeal for concluding as such.

144. In dealing with the contention as to whether the issues raised in the two suits therein were directly and substantially the same, the Supreme Court noted that the initial suit was instituted by way of a judicial review application whereas the subsequent suit was by way of a constitutional Petition. The Court also noted that the issues raised in the constitutional Petition were more than those decided in the judicial review application.

145. The Supreme Court disagreed with the Court of Appeal and found that the doctrine was not applicable in the matter. The Court held that: -(97)From the face of it, it would appear that the issues in the present suit and JR 130 of 2011 are directly and substantially the same. However, the Appellants herein predicated their petition on inter alia grounds that the bilateral agreement should have been approved by Parliament in order to form party of Kenyan law and in failing to do so, the Respondents contravened Article 2. They further alleged that the Respondents herein purported to usurp to the role of Parliament and in doing so contravened Articles 94(5) and (6) of the Constitution. They further alleged that the FERI and COD certificates threatened to infringe their right to property under Articles 40(1)(a) and (2)(a) when the Respondents threatened to arbitrarily deprive them of their property. The Court sitting in determination of a judicial review application did not have jurisdiction to render itself on these issues. We therefore find that the principle of res judicata was wrongly invoked on this ground. (emphasis added).

146. On the competency of the Court deciding the matters in issue, the Supreme Court noted the close relationship between the issue as to whether the current suit had been decided by a competent court and whether the matter in dispute in the former suit between the parties was directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar.

147. The Apex Court had a lengthy discussion on the matter. It referred to several decisions and, in the end, rendered itself as follows: -[107]The Court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the Court can do when determining a constitutional petition. Further the Court is further empowered to grant not just judicial review orders but any other relief is deems fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. This Court in its decision in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR went ahead to reaffirm use of structural interdicts and supervisory orders to redress the violation of a fundamental right in order to allow the development of Court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.[108]We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.[109]The Court in hearing a constitutional petition may very well arrive at the same conclusion as the Court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the Court will be playing fairly different roles.[110]We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion.

148. The Supreme Court also discussed two exceptions to the doctrine of res judicata. The Court stated as follows: -(84)Just as the Court of Appeal in its impugned decision noted that rights keep on evolving, mutating, and assuming multifaceted dimensions it may be difficult to specify what is rarest and clearest. We however propose to set some parameters that a party seeking to have a court give an exemption to the application of the doctrine of res judicata. The first is where there is potential for substantial injustice if a court does not hear a constitutional matter or issue on its merits. It is our considered opinion that before a court can arrive at such a conclusion, it must examine the entirety of the circumstances as well address the factors for and against exercise of such discretionary power.(85)In the alternative a litigant must demonstrate special circumstances warranting the Court to make an exception.

149. The Supreme Court had earlier expressed itself on the doctrine of res judicata in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR where it delimited the operation of the doctrine of res-judicata in the following terms;(317)The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.(318)This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.(319)There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89. [320]So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a Court is essentially the same as another one already satisfactorily decided, before a competent court.(333)We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1st, 2nd and 3rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v. Figliola [2011] 3 S.C.R. 422, 438 (paragraph 28)).(334)Whatever mode the 1st, 2nd and 3rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the Courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v. National Bank of Kenya Ltd. & Others, [2001] EA 177 the Court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”(352)The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32. (353)Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & Another v. Attorney General & 6 Others, High Court Const. and Human Rights Division, Petition No. 593 of 2013 [2014] eKLR, Lenaola J. (at paragraph 64) thus stated:Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the Constitutional Court and where the Court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights-based litigation and the reason is obvious.(354)On the basis of such principles evolved in case law, it is plain to us that the 1st, 2nd and 3rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.(355)However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution.

150. The Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR (which decision was overturned by the Supreme Court) also, and so correctly, discussed the doctrine of res judicata at length. The Court stated in part as follows: -The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit.From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -i.The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.ii.There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.iii.The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.

151. Having endeavoured an elaborate discussion on the doctrine of res judicata, this Court will now apply the foregoing to the matter at hand.

152. The basis of the invocation of the doctrine of res judicata was the complaint filed by the Petitioner before the IEBC Dispute Resolution Committee (hereinafter referred to as ‘the DRC’).

153. It was contended that once a complaint was dealt with by the DRC to finality, then the only recourse is an appeal and not other fresh proceedings like the instant Petition. To that end, it was posited that the Petition is caught up by the doctrine of res judicata.

154. One of the principles for consideration in dealing with whether a suit is res judicata is the finality of the decision in the former suit. This principle is intertwined with the requirement that the Court handling the latter case should not be an appellate Court or a Court that can exercise supervisory jurisdiction over the Court that handled the former suit. In this case, the former Court is the DRC and the latter one is the High Court.

155. Article 88(4)(e) of the Constitution and Section 74 of the Elections Act accords the IEBC the duty to settle electoral disputes, including disputes relating to or arising from nominations except election petitions and disputes subsequent to the declaration of election results.

156. Further, the IEBC does not have jurisdiction over the pre-election disputes falling within the exclusive confines of the Political Parties Dispute Resolution Tribunal created under Section 38 of the Political Parties Act and whose jurisdiction is provided for in Section 40 of the said Act.

157. The Constitution and the Elections Act, unlike the Political Parties Act, do not provide for any avenue for a party who is dissatisfied with the decision of the DRC.

158. The lacuna was, however, resolved by the Supreme Court in Sammy Ndung'u Waity vs. Independent Electoral and Boundaries Commission & 3 others [2019] eKLR where it was held as follows: -Where the IEBC or PPDT has resolved a pre-election dispute, any aggrieved party may appeal the decision to the High Court sitting as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 164(3) and (6) of the Constitution, The High Court shall hear and determine the dispute before the elections in accordance with the constitutional timelines.

159. Therefore, to the extent that the impugned decision is amenable to further challenge to the High Court, then the DRC cannot be considered as having the same status as the High Court. In this case, the High Court, in the words of the Supreme Court, sits as a judicial review Court, or in exercise of its supervisory jurisdiction under Article 164(3) and (6) of the Constitution.

160. Given the disparity in the jurisdiction and status between the DRC and the High Court and in the context of the fact that the High Court may, rightly so, interfere with the decision of the DRC, then the doctrine of res judicata does not apply. The doctrine may have been applicable, subject to the other principles, had it been that the DRC and the High Court are placed at the same level in dealing with election-related disputes.

161. In the circumstances, this Court finds that the position that the instant Petition is barred by dint of the doctrine of res judicata is misplaced and is for rejection.

162. I will now consider the second sub-issue.

Whether the challenge to the impugned decision of the DRC ought to have strictly been by way of appeal: 163. This sub-issue was long settled by the Supreme Court.

164. 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.

165. 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.

166. 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.

167. 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.

168. 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’.

169. 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.

170. 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.

171. 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.

172. 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.

173. 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.

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

175. 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.

176. Next is the last sub-issue.

Whether the Petition meets the precision threshold: 177. In dealing with this sub-issue, it must be reiterated that the instant proceedings were instituted by way of a Constitutional Petition. According to the title on the Petition, the proceedings are pursuant to Article 165(3) and (6) of the Constitution among other provisions. This Court has already captured verbatim the provisions of Article 165(6) of the Constitution on the High Court’s supervisory jurisdiction.

178. The instant proceedings must, hence, be contrasted from judicial review proceedings per se. However, the Petition also seeks orders in the nature of judicial review courtesy of Article 23(3) of the Constitution.

179. It is that instant Petition which is contended to lack specificity, hence, the plea for discontinuation.

180. Given the unique nature of Constitutional Petitions, Courts, since the pre-2010 constitutional era, have variously emphasized the need for clarity of pleadings. See: Anarita Karimi Njeru vs. Republic (1979) KLR 154.

181. Upon the promulgation of the Constitution in 2010, The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (commonly referred to as ‘the Mutunga Rules’) were later on enacted.

182. These rules make provision for the contents of Petitions in Rule 10 thereof.

183. Further, the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR had the following on Constitutional Petitions: -Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

184. As to what a constitutional issue is, the South African Constitutional Court decision in Fredricks & Other vs. MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC) comes in handy. The Court, rightly so, delimited what it entails in light of the jurisdiction of a Constitutional Court as follows: -The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…

185. In the United States of America, a constitutional issue refers to any political, legal, or social issue that in some way confronts the protections laid out in the US Constitution.

186. Taking cue from the foregoing, and broadly speaking, a constitutional issue is, therefore, one which confronts the various protections laid out in a Constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.

187. In the words of Langa, J in Minister of Safety & Security vs. Luiters, (2007) 28 ILJ 133 (CC): -… When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…

188. I have perused the Petition in this matter. It has six parts. They are the description of the parties, the facts leading to the Petition, the Petitioner’s locus standi and the Court’s jurisdiction, the legal foundation of the Petition, the constitutional violations and the reliefs sought.

189. The Petition draws a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement. The Petition, therefore, complies with Rule 10(1) and (2) of the Mutunga Rules as well as the requirements in Communications Commissioncase (supra). It is a Petition worth consideration on merit.

190. As was held by the Supreme Court in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR that the jurisdiction of a Court is conferred by either the Constitution or the law, in this instance, it is the Constitution which confers this Court with the supervisory jurisdiction over the issues raised in the Petition.

191. Having answered the three sub-issues in favour of the Petitioner, this Court now finds and hold that it is fully seized of the jurisdiction over this matter.

192. Having so found, and since the first issue is now answered in the affirmative, I will deal with the rest of the issues.

(b) The principles of constitutional interpretation: 193. Resulting from the issues raised in this matter, it is imperative to run through the principles that guide Courts when called upon to interpret the Constitution, like in this case.

194. The consideration will no doubt lay a solid basis for consideration of the rest of the issues.

195. The High Court in David Ndii & others v Attorney General & others [2021] eKLR (famous referred to as ‘the BBI case’) captured with precision the manner in which our transformative Constitution ought to be interpreted. The Learned Judges presented themselves thus: -399. One of the imports of recognition of the nature of the transformative character of our Constitution is that it has informed our methods of constitutional interpretation. In particular, the following four constitutional interpretive principles have emerged from our jurisprudence:a.First, the Constitution must be interpreted holistically; only a structural holistic approach breathes life into the Constitution in the way it was intended by the framers. Hence, the Supreme Court has stated in In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR thus (at paragraph 26):But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing circumstances.b)Second, our Transformative Constitution does not favour formalistic approaches to its interpretation. It must not be interpreted as one would a mere statute. The Supreme Court pronounced itself on this principle in Re Interim Independent Election Commission [2011] eKLR, para [86] thus:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts.c)Third, the Constitution has provided its own theory of interpretation to protect and preserve is values, objects and purposes. As the Retired CJ Mutunga expressed in his concurring opinion in In In Re the Speaker of the Senate & Another v Attorney General & 4 Others, Supreme Court Advisory Opinion No. 2 of 2013; [2013] eKLR. (paragraphs 155-157):(155)In both my respective dissenting and concurring opinions, In the Matter of the Principle of Gender Representation in the National Assembly and Senate, Sup Ct Appl No 2 of 2012; and Jasbir Singh Rai& 3 Others v Tarlochan Singh Rai and 4 Others Sup Ct Petition No 4 of 2012, I argued that both the Constitution, 2010 and the Supreme Court Act, 2011 provide comprehensive interpretative frameworks upon which fundamental hooks, pillars, and solid foundations for the interpreting our Constitution should be based. In both opinions, I provided the interpretative coordinates that should guide our jurisprudential journey, as we identify the core provisions of our Constitution, understand its content, and determine its intended effect.(156)The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that the lower Courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretative guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents. The Court must also remain conscious of the fact that constitution-making requires compromise, which can occasionally lead to contradictions; and that the political and social demands of compromise that mark constitutional moments, fertilize vagueness in phraseology and draftsmanship. It is to the Courts that the country turns, in order to resolve these contradictions; clarify draftsmanship gaps; and settle constitutional disputes. In other words, constitution making does not end with its promulgation; it continues with its interpretation. It is the duty of the Court to illuminate legal penumbras that Constitution borne out of long drawn compromises, such as ours, tend to create. The Constitutional text and letter may not properly express the minds of the framers, and the minds and hands of the framers may also fail to properly mine the aspirations of the people. It is in this context that the spirit of the Constitution has to be invoked by the Court as the searchlight for the illumination and elimination of these legal penumbras.d)Fourthly, in interpreting Constitution of Kenya, 2010, non-legal considerations are important to give its true meaning and values. The Supreme Court expounded about the incorporation of the non-legal considerations and their importance in constitutional interpretation in the Communications Commission of Kenya Case. It stated thus:(356)We revisit once again the critical theory of constitutional-interpretation and relate it to the emerging human rights jurisprudence based on Chapter Four – The Bill of Rights – of our Constitution. The fundamental right in question in this case is the freedom and the independence of the media. We have taken this opportunity to illustrate how historical, economic, social, cultural, and political content is fundamentally critical in discerning the various provisions of the Constitution that pronounce on its theory of interpretation. A brief narrative of the historical, economic, social, cultural, and political background to Articles 4(2), 33, 34, and 35 of our Constitution has been given above in paragraphs 145-163. (357)We begin with the concurring opinion of the CJ and President in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014 left off (see paragraphs 227- 232). In paragraphs 232 and 233 he stated thus:(232)…References to Black’s Law Dictionary will not, therefore, always be enough, and references to foreign cases will have to take into account these peculiar Kenyan needs and contexts.(233)It is possible to set out the ingredients of the theory of the interpretation of the Constitution: the theory is derived from the Constitution through conceptions that my dissenting and concurring opinions have signalled, as examples of interpretative coordinates; it is also derived from the provisions of Section 3 of the Supreme Court Act, that introduce non-legal phenomena into the interpretation of the Constitution, so as to enrich the jurisprudence evolved while interpreting all its provisions; and the strands emerging from the various chapters also crystallize this theory. Ultimately, therefore, this Court as the custodian of the norm of the Constitution has to oversee the coherence, certainty, harmony, predictability, uniformity, and stability of various interpretative frameworks dully authorized. The overall objective of the interpretative theory, in the terms of the Supreme Court Act, is to “facilitate the social, economic and political growth” of Kenya.400. With these interpretive principles in mind, which we will call the Canon of constitutional interpretation principles to our Transformative Constitution, we will presently return to the transcendental question posed in these Consolidated Petitions…...

196. With such a background, a consideration of the next issue follows.

(c) Whether the proceedings before the DRC were conducted in contravention of Article 50(1) of the Constitution and the applicable principles on burden of proof: 197. There are two sub-issues which arise from this issue. The sub-issues are as follows: -(i)Whether the DRC rightly handled the issue of burden of proof.(ii)Whether the proceedings before the DRC were conducted in contravention of Article 50(1) of the Constitution.

198. The sub-issues will be considered hereunder.

Whether the DRC rightly handled the issue of burden of proof: 199. Before this Court ventures to render itself on the sub-issue, it is of importance to lay down the law regarding the burden of proof.

200. There is no doubt that such law is well settled by none other than the Supreme Court. That was in Presidential Election Petition No. 1 of 2017 Raila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR.

201. The Apex Court had the following to say: -127. The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one or the other of the parties either to establish a case or to establish the facts upon a particular issue.[46] Black‘s Law Dictionary[47] defines the concept as ―[a] party‘s duty to prove a disputed assertion or charge….[and] includes both the burden of persuasion and the burden of production.‖ With that definition, the next issue is: who has the burden of proof"128. The law places the common law principle of onus probandi on the person who asserts a fact to prove it. Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya, legislates this principle in the words: ―Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.‖ In election disputes, as was stated by the Canadian Supreme Court in the case of Opitz v. Wrzesnewskyj[48], an applicant who seeks to annul an election bears the legal burden of proof throughout. This Court reiterated that position in the 2013 Raila Odinga case, thus:(195)There is, apparently, a common thread in…comparative jurisprudence on burden of proof in election cases…that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner….(196)This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority‘s departures from the prescriptions of the law.‖127. Thus a petitioner who seeks the nullification of an election on account of nonconformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds[49] ―to the satisfaction of the court.‖[50] That is fixed at the onset of the trial and unless circumstances change, it remains unchanged.[51] In this case therefore, it is common ground that it is the petitioners who bear the burden of proving to the required standard that, on account of non-conformity with the law or on the basis of commission of irregularities which affected the result of this election, the 3rd respondent‘s election as President of Kenya should be nullified.128. Though the legal and evidential burden of establishing the facts and contentions which will support a party‘s case is static and ―remains constant throughout a trial[52] with the plaintiff, however, ―depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting‖[53] and ―its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.‖[54]129. It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‗factual ‘evidence to prove his/her allegations of breach, then the burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law…..

202. From the foregoing, there are two types of burden of proof in an adversarial system of disputes resolution. They are the legal burden of proof and the evidential burden of proof.

203. The legal burden of proof is the proof which rests on the party who calls upon the Court to find that the allegations are proved. The law places such burden on that party throughout the proceedings. In Kenya, Section 107 of the Evidence Act, Cap. 80 of the Laws of Kenya, attest to that.

204. The party on whom the legal burden of proof rests is required to adduce evidence to prove what is alleged. That burden of calling for proof is the one referred to as the evidential burden of proof. The party on whom the evidential burden of proof rests may or may not adduce such sufficient and admissible evidence to discharge the burden. On one hand, if no sufficient evidence is adduced to the required standard, then the allegation(s) fail and it all ends there.

205. On the other hand, if admissible evidence on the allegations is adduced to the satisfaction of the Court, then it becomes the duty of the other party whom the allegations are made against to adduce evidence rebutting those allegations. At that point, the evidential burden of proof is said to shift from the party making the allegations to the other party on whom the allegations are made against.

206. That is the evidential burden of proof. Unlike the legal burden of proof which rests on the party making the allegations throughout the proceedings, the evidential burden of proof keeps on shifting depending on the evidence adduced in respect of a particular issue.

207. Having settled the law on the burden of proof, what follows is the ascertainment as to whether the DRC handled the issue correctly.

208. In doing so, this Court will consider three areas of interest. The areas are the nature of the complaint, the jurisdiction of the DRC and if the DRC has the jurisdiction, then a look at whether the complaint was proved. First in line is the nature of the complaint.

The Complaint: 209. The Court has carefully perused the record before the DRC. According to the complaint filed with the DRC, the Petitioner herein, then the Complainant, laid his complaint as follows: -The Nominee fails to meet the constitutional and statutory test/requirement to have a degree under Article 193(1)(b) and Section 22(2) of the Elections At which require the degree qualification. Fake and fraudulent degree violates the Leadership and Integrity Act and Articles 73 and 75(1)(1) of the Constitution of Kenya, 2010.

210. The Petitioner also filed an Affidavit he swore in support of his complaint. In the said Affidavit, the Petitioner variously deposed as follows: -(i)In paragraphs 5 to 8 inclusive, the Petitioner expounded on why the allegation that the 4th Respondent herein, who was the 1st Respondent before the DRC, was a graduate from the University of Nairobi was false and fraudulent.(ii)In paragraphs 9 and 10 inclusive, the Petitioner expounded on why the allegation that the 4th Respondent herein was a graduate from the TEAM University in Uganda was false and fraudulent.(iii)In paragraphs 11 and 12 inclusive, the Petitioner addressed the allegation that the 4th Respondent herein has a habit of forging and fraudulently misrepresenting that he holds academic testimonials.iv.In paragraphs 16 to 20 inclusive, the Petitioner addressed the effect of the 4th Respondent’s fraud and forgeries.v.In paragraph 23 he deposed as follows: -THAT I therefore urge this Honourable Dispute Resolution Committee to recommend institution of criminal proceedings against the 1st Respondent, for the stipulated frauds and forgeries.

211. Therefore, the complaint before the DRC can be summed up to have been based on the allegations that the 4th Respondent herein was engaged in criminal activities in the nature of fraud, uttering false documents, forgeries and fraudulent misrepresentation, among many others.

212. Having summed up the complaint, this Court shall now deal with the aspect of whether the DRC had the jurisdiction over the complaint.

The jurisdiction of DRC: 213. The jurisdiction of the DRC derives from Article 88(4)(e) of the Constitution and Section 74 of the Elections Act.

214. Article 88(4)(e) of the Constitution states as follows: -88. Independent Electoral and Boundaries Commission(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;

212. Section 74 of the Elections Act stipulates as under: -74. Settlement of certain disputes:(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.(2)An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.(3)Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

215. The jurisdiction of the DRC is further delimited under the Political Parties Act. The said Act provides for the Political Parties Disputes Tribunal in Section 38 thereof with its jurisdiction provided for under Section 40.

216. The jurisdiction of the Political Parties Disputes Tribunal under Section 40 of the Political Parties Disputes Tribunal is provided for in the following terms: -40. Jurisdiction of Tribunal(1)The Tribunal shall determine-(a)disputes between the members of a political party;(b)disputes between a member of a political party and the political party;(c)disputes between political parties;(d)disputes between an independent candidate and a political party;(e)disputes between coalition partners;(f)appeals from decisions of the Registrar under this Act; and(fa)disputes arising out of party nominations.(2)Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.(3)A coalition agreement shall provide for internal dispute resolution mechanisms

217. The Supreme Court has extensively dealt with the jurisdiction of the DRC, the Political Parties Disputes Tribunal and the Election Courts. That was in, inter alia, Silverse Lisamula Anami v. Independent Electoral and Boundaries Commission & 2 Others SC Petition No. 30 of 2018, Sammy Ndung’u Waity v. Independent Electoral & Boundaries Commission & 3 Others case (supra) and in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR.

218. Deriving from the foregoing, the DRC, therefore, exercises jurisdiction over election disputes except those which arise upon the declaration of election results and the disputes which fall within the purview of the Political Parties Disputes Tribunal.

219. There is no doubt that the DRC is a quasi-judicial body on whose legal shoulders the above jurisdiction rests. That was also the body that was called upon by the Petitioner herein, then the Complainant, to find and hold that the 4th Respondent herein was engaged in criminal activities in the nature of fraud, uttering false documents, forgeries and fraudulent misrepresentation.

220. The DRC was further urged to recommend the institution of criminal proceedings against the 4th Respondent herein on the basis of the alleged illegal acts.

221. This Court, on the basis of the Constitution, the law and the binding decisions of the Supreme Court, is clear in its mind that the DRC has the jurisdiction to deal with disputes on the academic qualifications of a candidate.

222. The DRC must, however, ensure that the requisite standard of proof is attained depending on the nature of and the manner in which the complaint is laid before it.

Whether the complaint was proved: 223. On the basis of the foregoing and in order to enable this Court to ascertain whether the complaint was proved, there is need to look at the legal principle of standard of proof.

224. The Black’s Law Dictionary, 10th Edition, Thompson Reuters Edition, defines the term ‘standard of proof’ at page 1624 as follows: -The degree or level of proof demanded in a specific case, such as ‘beyond a reasonable doubt’ or ‘beyond a preponderance of the evidence’; a rule about the quality of the evidence that a party must bring forward to prevail.

225. The Merriam-Webster Dictionary further defines the term ‘standard of proof’ as follows: -The level of certainty and the degree of evidence necessary to establish proof in a criminal or civil proceeding.

226. The standard of proof is, therefore, the legal threshold to be attained by way of evidence for a complaint to prevail.

227. The applicable standards of proof in election disputes were discussed by the Supreme Court in Presidential Election Petition No. 1 of 2017 Raila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR.

228. The Court upon endeavouring a detail comparative analysis on how other jurisdictions dealt with the subject of standard of proof in election disputes stated as follows: -(143)Besides the burden of proof, the law also imposes a degree of proof required to establish a fact. The extent of the proof required in each case is what, in legal parlance, is referred to as ― the standard of proof. The Black‘s Law Dictionary defines it as ―[t]he degree or level of proof demanded in a specific case‖[64] ―in order for a party to succeed.‖[65](144)Various jurisdictions across the globe have adopted different approaches on the question of the requisite standard of proof in relation to election petitions. From many decisions, three main categories of the standard of proof emerge: the application of the criminal standard of proof of beyond reasonable doubt; the application of the civil case standard of balance of probabilities; and the application of an intermediate standard of proof. [66](145)The application of the criminal standard of proof of beyond reasonable doubt’ arises when the commission of criminal or quasi criminal acts are made in a petition. This is the standard the Supreme Court of India employed in the case of Shiv Kirpal Singh v. Shri V. V. Giri [67] where it stated:Although there are inherent differences between the trial of an election petition and that of a criminal charge in the matter of investigation, the vital point of identity for the two trials is that the court must be able to come to the conclusion beyond any reasonable doubt as to the commission of the corrupt practice.

229. In setting the applicable standard of proof in Kenya in election disputes, the Apex Court rendered itself as follows: -(152)We maintain that, in electoral disputes, the standard of proof remains higher than the balance of probabilities but lower than beyond reasonable doubt and where allegations of criminal or quasi criminal nature are made, it is proof beyond reasonable doubt. Consequently, we dismiss the petitioners ‘submissions that the Court should reconsider the now established legal principle, as discussed above, and find that the standard of proof in election petitions is on a balance of probabilities.

230. At this point in time, it is worth remembering that an election is a process and not an event. (See Supreme Court in Presidential Election Petition No. 1 of 2017 Raila Amolo Odinga & Another vs. IEBC & 2 Others (2017) eKLR).

231. Settled that an election is a process, it then goes without say that the standards of proof adopted by the Supreme Court in election disputes are applicable throughout any given election.

232. Returning to the case at hand, the complaint before the DRC was based on allegations of criminal or quasi criminal nature. As such, the applicable standard of proof was proof beyond reasonable doubt.

233. With that legal direction in mind, this Court will now visit the evidence tendered before the DRC.

234. The Court has, once again, considered the evidence in totality.

235. In proof of the criminal allegations against the 4th Respondent, the Petitioner relied on some documents. They documents include the following: -i.The 4th Respondent’s copy of the Nomination Application Declaration Form by Jubilee Party in respect of his 2017 Senatorial bid.ii.A copy of a letter by the University of Nairobi dated 31st May, 2021 addressed to the Director of Criminal Investigations relating to the 4th Respondent.iii.A copy of the 4th Respondent’s Degree Certificate from the TEAM University.iv.A copy of the 4th Respondent’s academic transcripts from the TEAM University.v.A copy of the Graduation Booklet for the 4th Graduation of the TEAM University held on 21st October, 2016 in Uganda. The booklet has a list of various graduands.vi.A copy of a letter dated 8th June, 2022 from St. Lawrence University (SLAU) in Uganda addressed to the Kenya High Commission in Uganda.vii.A copy of a letter dated 6th June, 2022 by the Commission for University Education in Kenya addressed to the 4th Respondent.viii.A copy of a letter dated 6th June, 2022 by the TEAM University to the Executive Director, National Council for Higher Education (NCHE) in Uganda.ix.Copies of some online conversations.

236. The Petitioner had also intended to rely on some other forms of evidence which were contained in the Petitioner’s Supplementary Affidavits he swore on 12th June, 2022 and 15th June, 2022 respectively.

237. The said affidavits were, however, not admitted as part of the record by the DRC for reasons contained in the record.

238. That notwithstanding, the two Supplementary affidavits were aimed at producing the following further documents: -i.Electronic evidence in form of videos contained in a flash disk.ii.A copy of a letter dated 9th June, 2022 by the Petitioner’s Advocates on record to the Vice-Chancellor of the TEAM University on the verification of the undergraduate certificate issued to the 4th Respondent.iii.A copy of a letter dated 13th June, 2022 by the Petitioner’s Advocates on record to the Commission for University Education in Kenya requesting the confirmation on whether TEAM University programmes during the period 2012 to 2022 were conducted in conformity with the test for recognition and accreditation under Kenyan laws and standards.iv.A response by the Commission for University Education vide its letter dated 14th June, 2022 on the Petitioner’s letter dated 13th June, 2022. v.A letter dated 14th June, 2022 by the Commission for University Education to the 4th Respondent on the revocation of recognition of the 4th Respondent’s degree.

239. Based on the foregoing evidence by the Petitioner as contained in the supporting affidavit, the 4th Respondent filed a Replying Affidavit in response thereto.

240. In his disposition, the 4th Respondent denied the allegations contained in the complaint.

241. The 4th Respondent, in particular, deposed as follows in paragraph 18: -18. THAT in any event, the allegations borne in the complaints herein, are baseless on the following account:1. THAT among other qualifications and awards of excellence, hold a Bachelor of Science in Management degree conferred upon me by Team University in Uganda, having satisfied the requirements for the award.ii.THAT contrary to the false averments by the Complainants. Team University in Uganda is duly recognized in the Republic of Uganda and by convention in Kenya. (Annexed hereto and marked "SJA2" is a letter from the Commission for University Education affirming the Institutional accreditation of Team University).iii.THAT my qualifications and academic credentials are not in doubt having been affirmed through a lawful process. (Annexed hereto and marked "SJA3" is a letter from the Team University to the National Council for Higher education (NCHE) with reference to verification of my academic documents),iv.THAT the Complainants' wild allegations to the effect that did not graduate from Team University are and factually hollow and unfounded. For nefarious goals, the Complainants have fraudulently omitted relevant pages of the graduation booklet that bear my graduation credentials. (Annexed hereto and marked "SJA4" is a true extract of the Graduation booklet of the Team University's 4 Graduation Ceremony held on 21 October 2016 whereby my name and appropriate particulars are well featured).

242. The above was the evidence which was considered by the DRC except the evidence contained in the Petitioner’s supplementary affidavits.

243. The inevitable question which now calls for an answer is whether, on the basis of the evidence on record, the DRC is to be faulted in the manner it handled the aspect of the evidential burden of proof.

244. The DRC in its judgment dealt with the issue as follows: -65. Did the burden shift to 1" Respondent herein? Yes. Initially the Complainant alleged that the degree in question does not exist because as of 2017, the 1st Respondent had not made a disclosure as to its existence. The burden then shifted to the 1st Respondent who exhibited graduation ceremony photos as well graduation lists wherein he was one of the graduands. The burden then shifted back to the complainant to prove the allegations that the impugned degree is a forgery which burden, the complainant has failed to discharge, noting the degree certificate in question is exhibited by the complainant himself as annexure "DGW-3" to his supporting affidavit to the complaint sworn on the 10th June, 2022.

245. At the beginning of the proceedings before the DRC, both the legal and evidential burden of proof were on the Petitioner.

246. It is the Petitioner who alleged that the 4th Respondent’s degree certificate from the TEAM University was falsified. The Petitioner went further and annexed a copy of the degree certificate in his disposition. Therefore, the Petitioner was in possession of the impugned degree at the institution of the case before the DRC.

247. Given that the Petitioner’s case was based on criminal allegations on the part of the 4th Respondent relating to the degree certificate which was in the possession of the Petitioner, the evidential burden of proof called upon the Petitioner to prove that indeed the degree certificate was not genuine and that the 4th Respondent had committed various criminal acts.

248. It was upon the tendering of such evidence by the Petitioner that the evidential burden of proof would then shift to the 4th Respondent.

249. In a bid to discharge the burden, the Petitioner relied on the documents referred to hereinabove.

250. A careful perusal of the documents by the Petitioner as well as those by the 4th Respondent, and even those which were not part of the record, hardly support any insinuation that the Petitioner adduced any evidence to prove that the degree certificate was forged and that the 4th Respondent had committed a litany of criminal acts so as to call for rebuttal by the 4th Respondent.

251. This Court takes that position for several reasons. One, as the complaint was based on allegations that the 4th Respondent had committed fraud, uttered false documents, forged documents and fraudulently misrepresented himself, there was no evidence or at all to prove any of such serious criminal allegations. The Court remains alive to the legal calling that in electoral disputes based on allegations of criminal nature, that the standard of proof is beyond any reasonable doubt.

252. Two, the Petitioner was well aware of the need to ascertain the commission of such serious offences in law and that is why he urged the DRC through his supporting affidavit in paragraph 23 to recommend the institution of criminal proceedings against the 4th Respondent. Three, there was evidence of on-going investigations by the Director of Criminal Investigations against the 4th Respondent’s academic qualifications. Four, the Petitioner failed to adduce the outcome of the said criminal investigations. Five, there was no evidence proving that the 4th Respondent had been charged and convicted of any criminal offence surrounding the manner in which the 4th Respondent obtained the impugned degree certificate.

253. Six, the Petitioner relied on inadmissible evidence including that the TEAM University had stopped offering the Degree of Bachelor of Science in Management in 2005 and that none of those who graduated with the Degree of Bachelor of Science in Management ever heard or saw the 4th Respondent in class or during examinations or ever heard any of their lecturers referring to the 4th Respondent. (See the High Court in Mombasa Consolidated Constitutional Petition Nos. 159 of 2018 and 201 of 2019 William Odhiambo Ramogi & Others vs. The Attorney General & Others (2020) eKLR where the importance of adherence to the rules of evidence both in terms of presentation (authenticity and foundation) and quality of evidence (credibility and probative value) were discussed at length).

254. Seven, there was no material corroboration of any nature on any of the criminal allegations made. Section 124 of the Evidence Act provides as follows: -124. Corroboration required in criminal cases:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.

255. On the basis of the foregoing discussion, this Court finds that, indeed, there was no any sufficient and admissible evidence for the 4th Respondent to rebut. The manner in which the complaint was presented and the quality of the evidence tendered by the Petitioner would not even create an iota of inference pointing to the guilt of the 4th Respondent over the criminal allegations made such that even if the 4th Respondent did not appear in the matter, still the complaint would not stand.

256. In other words, there was no enough evidence to shift the evidential burden from the Petitioner to the 4th Respondent. I say so on the basis of the fact the standard of proof in the matter was proof beyond any reasonable doubt and not on the preponderance of probabilities or even on the intermediary test.

257. The DRC was, therefore, too generous in finding that the evidential burden of proof had shifted to the 4th Respondent.

258. At this point, I wish to give an example on how the evidential burden of proof would have shifted from the Petitioner to the 4th Respondent. The example is based on a supposition that the 4th Respondent did not tender a degree certificate or at all from any University at the time of registration.

259. In that case, the Petitioner’s complaint would have been that the 4th Respondent did not qualify to stand for the election of the Governor of Nairobi City County on the basis of failure to produce a degree certificate.

260. In such a scenario, the allegation is not criminal in nature. Therefore, the burden of proof is the intermediary test and not proof beyond any doubt.

261. The Petitioner would easily attain such a standard of proof by simply deposing that the Petitioner did not produce such a degree certificate despite clearance. At that point in time, the 4th Respondent and the Returning Officer would then be under a legal duty to make a rebuttal to such evidence. Such would mean that the evidential burden of proof would have shifted from the Petitioner to the 4th Respondent.

262. However, the above example is different from the facts in the instant case. In this case, the allegations are criminal in nature thereby requiring a different and higher standard of proof.

263. Having said so and be that as it may, even if this Court is to take it that the DRC was right in its finding that the evidential burden of proof had shifted to the 4th Respondent, still the 4th Respondent adduced evidence which properly countered the Petitioner’s evidence such that in the absence of any further evidence, the complaint would not succeed. The evidence in rebuttal included correspondences by TEAM University in Uganda and the Commission for Higher Education in Kenya confirming the authenticity and recognition of the degree certificate respectively.

264. With such a rebuttal, no doubt the evidential burden shifted back to the Petitioner and the Petitioner was legally called upon to adduce further evidence in support of the complaint. As said, even by considering the evidence in the supplementary affidavits which the DRC struck off record, still there was no sufficient and admissible evidence to support the criminal allegations put forth against the 4th Respondent.

265. On the basis of the foregoing, this Court finds and hold that the DRC did not err in the manner in which it handled the aspect of the burden and standard of proof. Equally, the DRC did not err in its finding dismissing the complaint on the basis of lack of proof of the complaint.

Whether the proceedings before the DRC were conducted in contravention of Article 50(1) of the Constitution. 266. This sub-issue rests on the contention that the DRC wrongly expunged the Petitioner’s supplementary affidavits sworn on 12th and 15th June, 2022 respectively.

267. To that end, it is the Petitioner’s position that his fair trial rights under Article 50(1) of the Constitution were infringed.

268. Article 50(1) of the Constitution states as follows: -Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. 269. The provision puts emphasis on fairness in dispute resolution.

270. The Supreme Court in Raila Odinga & 5 Others v IEBC and 3 Others (2013) eKLR stated the correct legal position which a Court has to consider in determining whether to admit or reject additional evidence filed outside the stipulated statutory timeliness: -

The parties have a duty to ensure they comply with their respective time lines, and the court must adhere to its own. There must be a fair and level playing field so that no party or the court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party or the court as a result of omissions or characteristics which were foreseeable or could have been avoided. The other issue the court must consider when exercising its discretion to allow a further affidavit is the nature, context of the new material intended to be provided and relied upon. If it is small or limited so that the other party is able to respond to it, then the court ought to be considerate, taking into account all aspects of the matter. However, if the new material is so substantial involving not only a further affidavit but massive additional evidence, so as to make it difficult or impossible for the other party to respond effectively, the court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and or admissions of additional evidence. 271. The Court in Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR had the following to say on Article 50 in respect to non-criminal trials: -

…. While the wording of Article 50 of the Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.… it is important that in any judicial process adjudication parties involved be given opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system.Although in particular circumstances errors, omissions, missteps and blunders are made by parties or their counsels during pretrial or in the course of trial to find appropriate balance fundamental requisite of due process of law should be accorded a purposeful meaning to protect right to a fair hearing. The Civil Procedure Act and Rules provides for time-frame rules and commitments for parties to comply with discovery; dates for closure of pleadings, filing of witness statements, production of expert material where applicable, scheduling of cases and disposition dates. Needless to say that all these commitments are aimed at each litigant to have adequate notice and fair understanding of the litigation road ahead of time disposition … 272. In the current case, the DRC expunged two supplementary affidavits filed by the Petitioner herein on the day the complaint was slated for hearing.

273. The inclusion of the affidavits on the record of the RDC was vehemently opposed.

274. In its ruling, the DRC carefully contoured around the nature of the matter (being a time-bound election dispute), the manner in which the affidavits were filed without the leave of the DRC, the fact that no leave for the same to deem properly on record was sought, the fact that the affidavits introduced new evidence which had been generated after the institution of the complaint, the fact that the new evidence was subject of challenge in High Court Judicial Review No. E087 of 2022, the fact that the new evidence was introduced on the day of hearing of the complaint, relevant Supreme Court decisions, the doctrine of sub-judice, among other relevant considerations.

275. The DRC was then of the position that the affidavits be expunged from the record.

276. Section 74(2) of the Elections Act call for determination of disputes before the DRC within 10 days of institution. The complaint was filed on 9th June, 2022. As such, the complaint was to be determined by 19th June, 2022. The decision of the DRC was delivered on the said 19th June, 2022. It, therefore, means that if, for whatever reasons, the hearing was adjourned on the scheduled 15th June, 2022, then the DRC would likely have had difficulty in keeping within the statutory timelines.

277. Further, the new evidence sought the DRC to venture into matters that were before the High Court in Judicial Review No. E085 of 2022. The proceedings before the High Court challenged the manner in which the revocation of the recognition of the 4th Respondent’s degree certificate was made. This Court perused the Court file in Judicial Review No. E085 of 2022 and confirmed that on 15th June, 2022 the Court granted leave which was to operate as a stay of the decision of the Commission for University Education revoking the recognition of the 4th Respondent’s degree certificate.

278. The effect of the new evidence was, therefore, to substantially change the character of the complaint from allegations of criminal nature to whether the revocation of the recognition of the 4th Respondent’s degree certificate was within the Constitution and the law.

279. The DRC, without doubt, had to guard its processes and one way of doing so was to decline the invitation by the Petitioner. The new evidence was in no manner small such that the 4th Respondent would just respond to it. The evidence called for the 4th Respondent to be accorded time to respond to the same by way of disposition. That would have definitely eaten into the limited statutory timelines.

280. From the state of the record, the decision by the DRC to expunge the supplementary affidavits did not, therefore, and in any way infringe upon the Petitioner’s fair trial rights under Article 50(1) of the Constitution or at all.

281. The Court, therefore, declines the Petitioner’s contention that his fair trial rights under Article 50(1) of the Constitution were infringed.

282. As I come to the end of this issue, I must express concern in the manner in which serious matters regarding allegations of forged academic documents are generally handled in this country. I say so noting that this is not the first case in which the High Court has declined to find a party accused of forging academic certificates culpable in non-criminal proceedings. The High Court has repeatedly stated that matters of such gravity must be handled carefully: investigations be thoroughly carried out and those culpable to be brought to book. Once that happens, then the criminal convictions can be used to mount challenges like the one before this Court.

283. Where there is adequate evidence of one’s culpability in obtaining academic certificates contrary to the law, such a person should not be allowed to unfairly benefit from such illegalities. However, to attain that bar, and as said, the investigative agencies and the Office of the Director of Public Prosecutions must take up such matters to the very end.

284. Until and unless such deliberate efforts are taken by the necessary parties, the seemingly increasing menace of persons using forged academic documents will never come to an end. It is my hope and desire that this longstanding issue will, going forward, receive appropriate action from the concerned parties.

285. Coming to the end of the main issue which is whether the proceedings before the DRC were conducted in contravention of Article 50(1) of the Constitution and the applicable principles on burden of proof, this Court now returns the verdict that the proceedings were neither conducted in contravention of Article 50(1) of the Constitution nor were they contrary to the applicable principles on the burden and standard of proof.

286. In the end, the main issue is answered in the negative.

(d) Whether the nomination of the 4th Respondent to vie for the position for the Governor, Nairobi City County by the 3rd Respondent was irregular, null and void as the 4th Respondent does not possess the qualifications required by Article 193(1)(b) of the Constitution as read with Section 22(2) of the Elections Act: 287. In response to the complaint before the DRC, the 3rd Respondent herein, the Returning Officer, Nairobi City County, one Gogo Albert Nguma, filed a Replying Affidavit he swore on 11th June, 2022.

288. The 3rd Respondent deposed in very clear terms how he cleared the 4th Respondent to vie for the Nairobi City Gubernatorial seat. He was emphatic that the 4th Respondent had complied with all legal requirements and there was no reason for him to decline to clear him for the election.

289. The 3rd Respondent confirmed receipt of the 4th Respondent’s Nomination Form 17, a duly signed Statutory Declaration – Form 19, EACC Self-Declaration Form duly stamped by EACC, Electoral Code of Conduct and a duly certified copy of the 4th Respondent’s university degree from the TEAM University in Uganda by the Commission for University Education.

290. The election regulations on the requirements to be availed by a person seeking a gubernatorial seat in Kenya provide for no more than the above documents.

291. This Court has carefully perused the Petition, the Petitioner’s dispositions and submissions hoping to get the legal provision requiring the 3rd Respondent to verify the authenticity of any of the documents availed during the time of registration of a candidate.

292. The Court was, as well, not lucky to land on any judicial decision vouching the position that the 3rd Respondent or the IEBC is under such a duty.

293. Indeed, it is true that neither the Constitution nor the law places such a duty upon the IEBC and its Returning officers. The IEBC and its officers are creatures of the Constitution and the law. They are like caged animals, operating, but within the confines of the Constitution and the law. The IEBC and its Returning officers will be acting in vain in undertaking duties which are not conferred unto them by either the Constitution or any law. Such a duty is the alleged verification of the documents presented to it by candidates.

294. As correctly held by the DRC, the IEBC does not have the tools and machinery to carry out forensic analysis to authenticate such documents. Further, such a requirement is without doubt time-consuming and that will result into interfering with the election timelines which are both constitutionally and statutorily decreed.

295. As stated earlier by this Court in this judgment, it is the onus of the parties to prove the allegations they bring forth. I say so because our country operates on the adversarial system of dispute resolution as opposed to an inquisitorial one. In such a state of affairs, it cannot be the duty of the umpire to wear the shoes of a candidate. If the Petitioner believed that the 4th Respondent was guilty as alleged in the complaint, then the Petitioner ought to have availed that conclusive evidence to the 3rd Respondent either before or at the time the 3rd Respondent was clearing the 4th Respondent. Had that happened then the 3rd Respondent would have, on a prima facie basis, weighed the evidence against its duties and made a decision. However, there was no such conclusive evidence or at all before the 3rd Respondent either before or at the time the 4th Respondent was registered as a candidate.

296. This Court, on the basis of adherence to the Rule of Law, finds no reason to add other duties unto the IEBC, which duties are not provided for by the Constitution and the law.

297. In buttressing the foregoing, this Court recalls that on 4th April, 2022 it found that, constitutionally, the IEBC does not have the mandate to summon witnesses. That was in Petition No. E073 of 2022 Hon. Sabina Chege vs. Independent Electoral and Boundaries Commission (unreported). The matter is pending the determination of an appeal lodged against the decision of this Court and at the moment, unless otherwise proved, there are no orders of the Court of Appeal staying the decision of this Court.

298. Therefore, if this Court is now to hold that the IEBC ought to verify the authenticity of the documents presented at registration then would mean asking the IEBC to conduct a hearing if need arises, including summoning of witnesses, a decision which will run contra that in Petition No. E073 of 2022.

299. The foregoing position further finds favour with that in Ethics and Anti-Corruption Commission vs. Granton Graham Samboja & Another; Kenyatta University & Another (Interested Parties) (2021) eKLR and in George Mike Wanjohi vs. Steven Kariuki & 2 Others (2014) eKLR.

300. In the end, this Court finds and hold that the 3rd Respondent did not err in its decision to clear the 4th Respondent to vie for the Nairobi City gubernatorial seat.

Disposition: 301. Having dealt with the issues subject of this Petition, the upshot is that the Petition is unsuccessful.

302. Consequently, the Petition and the Notice of Motion dated 27th June, 2022, be and are hereby, dismissed with costs.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF JULY, 2022. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Nyamondi, Miss. Mboce Njoki and Miss. Irene Cherono, Learned Counsel for the Petitioner.Mr. Gumbo, Mr. Kipkogei and Mr. Kyalo, Learned Counsel for the 1st and 3rd Respondents.Mr. J. B. Macharia, Mr. Edwin Mukele and Mr. Ndwiga Gacheru, Learned Counsel for the 2nd Respondent.Mr. Elias Mutuma, Mr. Duncan Okatch and Mr. Aldrin Kamotho, Learned Counsel for the 4th Respondent.Mr. Audi, Learned Counsel for the 1st and 2nd Interested Parties.Mr. Anjichi, Learned Counsel for the 3rd Interested Party and hold brief for Mr. Kiprono, Learned Counsel for the 4th Interested Party.Faustine Rotich – Court Assistant.Judgment – Nairobi High Court Constitutional Petition No. E321 of 2022 Page 31 of 31