[2023] KEHC 27000 (KLR)

Waruguru v Abdullahi & 2 others (Election Petition Appeal E001 of 2023) [2023] KEHC 27000 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27000 (KLR)

Republic of Kenya

In the High Court at Meru

Election Petition Appeal E001 of 2023

TW Cherere, J

December 14, 2023

Between

Kelvin Waruguru

Appellant

and

Abdi Fatuma Abdullahi

1st Respondent

United Democratic Party

2nd Respondent

Independent Electoral & Boundaries Commission

3rd Respondent

Ruling

Introduction and Background: 1. By a judgment dated 13th July, 2023 and reviewed on 26th July, 2023, this court made the following orders:1. The learned trial magistrate’s finding that the nomination of the Appellant as a member of the County Assembly of Isiolo under the category of special seats is null and void is sustained2. The learned trial magistrate’s order nullifying Gazette Notice No. 10712 dated 09th September, 2022 in which the Appellant was gazetted as a nominated member of the County Assembly of Isiolo under the category of special seats (a representative of the minority community) is similarly sustained3. The order directing IEBC to allocate the seat for the representative of Minority Group in the County of Isiolo County to the 1st Respondent Abdi Fatuma Abdullahi is likewise sustained4. The order on costs is similarly sustained save to add that Appellant shall pay the 1st Respondent the costs of the Appeal which are capped at KES. 500,000/- (five hundred thousand) whereas the 2nd and 3rd Respondents shall bear their own costs of the appeal

2. The 1st Respondent is yet to realise the fruits of her judgment for the reason the 3rd Respondent constitution having been affected by resignation of two commissioners, one commissioner having been removed by a recommendation of a tribunal and three commissioners, including its chairperson having retired upon completion of their 6 years terms on 17th January, 2023.

3. Consequently, by Notice of Motion dated 11th October,2023 filed on 12th October, 2023, the 1st Respondent/Applicant sought the following orders:a.Spentb.That the court do direct the 3rd Respondent‘s CEO to gazette the Petitioner/1st Respondent/Applicant within 7 days of this court orderc.That the speaker of the County Assembly Isiolo be directed to swear the Petitioner/1st Respondent/Applicant within 7 days upon gazettement.d.That the application be in the cause

4. The application is brought under Article 159 (2) (d) of the Constitution, Order 22,42 Rule 6 of the Civil Procedure Rules and Section 1A,1B,3,3A, and 99 of the Civil Procedure Act.

5. The application is premised on grounds, inter alia, that this court issued a decree on the 26th July, 2023 which was served upon the 3rd Respondent. That the 3rd Respondent is yet to comply with the court orders to gazette the Petitioner/1st Respondent/Applicant due to the fact that they do not have commissioners in office. That further, this court has jurisdiction to direct the 3rd respondent CEO to gazette the Petitioner/1st Respondent/Applicant and further direct the Speaker Isiolo County Assembly to swear in the applicant for the reason that the delay is prejudicial to Petitioner/1st Respondent/Applicant.

6. The application was further supported by a supporting affidavit sworn by Abdi Fatuma Abdullahi (1st Respondent/Applicant) in which the grounds upon which the application had been brought are reiterated.

7. The application was opposed by the 3rd Respondent vide grounds of opposition filled on 06th November, 2023 on the grounds that the application is misconceived, bad in law, untenable and gross abuse of the court. That the special jurisdiction that governs resolution of Election disputes is sui generis which excludes applications in the Civil Procedure Act and Rules. That the execution of a gazette notice is the function of the commission which is discharged only by the chairperson. That the Applicant has not shown the law that clothes the court with jurisdiction to direct the CEO to gazette the applicant in the absence of the commissioners. The Appellant and the 2nd Respondent did not respond to the application.

8. The application was canvassed by way of written submissions filled by Applicant on 17th October, 2023 and by the 3rd Respondent on 06th November, 2023.

9. The Applicant/1st Respondent submitted that it is a matter of public notoriety that the 3rd respondent does not commissioners in office for reasons stated herein above and that there are no signs of the commissioners will be recruited any time soon. The court was urged to find that it is only prudent that an order is issued compelling the 3rd Respondent’s CEO to gazette the Petitioner/ Applicant/1st Respondent as a Member of the Isiolo County Assembly under the Minority group representing the 2nd respondent. The court was further beseeched to issue orders tailor made to ensure that the ends of justice are made. In support thereof, reliance was placed on the case of Law Society of Kenya v Attorney General & Anor, Mohamed Abdullahi Warsame & Anor (Interested Parties) (2019) eKLR.

10. The 3rd Respondent on the other hand submitted that the duty to gazette elected members is the duty of the chairperson of the commission and that they cannot therefore turn a blind eye to the composition of the commission under Section 6 of the Independent Electoral and Boundaries Commission Act. The court was urged to find that the 1st/Respondent/Applicant has not brought proper reasons and laws to be relied upon for the orders sought in the application to have the CEO perform the functions of the chairperson. The 3rd Respondent contended that the application lacks merit and in support thereof relied on the cases of Thathini Development Company Limited vs Mombasa Water & Sewerage Company & Anor (2022) eKLR and Mercy Kirito Mutegi vs Beatrice Nkatha Nyaga & Anor (2013) eKLR.

11. I have considered the application in the light of the supporting affidavit, the grounds of opposition and submissions filed on behalf of 1st Respondent/Applicant and the 3rd Respondent and the issue for determination is whether the 1st Respondent/Applicant is entitled to the orders sought in the application.

12. Section 87 of The Elections (General) (Amendment) Regulations, 2012 which deals with Returns Of Persons Elected provides as follows:87. (1)The returning officer shall, as soon as practicable, forward to the county returning officer, in the case of–(a)a presidential election, a certificate in Form 37 showing the total number of votes cast for each candidate;(b)a member of National Assembly, county woman representative, Senate, county assembly, county governor or county assembly election, a certificate in Form 38 set out in the Schedule showing the total number of votes cast for each candidate.(2)The returning officer shall after tallying of votes at the constituency level—(a)announce the results cast for all candidates;(b)issue certificates to persons elected in the National Assembly and county assembly elections in Form 38 set out in the Schedule; and(c)electronically transmit the provisional results to the Commission.(3)The county returning officer shall upon receipt of the results from the returning officers as contemplated under regulation (1)—(a)tally and announce the results for the presidential elections, elections for the county governor, senator and county woman representative to the National assembly; and(b)submit all the results received from the returning officers, together with the results tallied under this regulation to the Commission; and(c)issue the persons elected pursuant to the results announced under paragraph (a) with certificates indicating their election in Form 38 set out in the Schedule.(4)Upon receipt of a certificate under sub regulation (1), the Chairperson of the Commission shall—(a)in the case of a presidential election, hold the certificate until the results of that election in every county have been received and thereafter publish a notice in the Gazette within seven days declaring the person who has received the greatest number of votes in the election, and has complied with the provisions of Article 138(4)(a) and (b) of the Constitution, to have been elected President:Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the counties have delivered their results if in the opinion of the commission the results that have not been received will not make a difference as to the winner on the basis of Article 138(4)(a) and (b) of the Constitution; and(b)in the case of the other elections, whether or not forming part of a multiple election, publish a notice in the Gazette, which may form part of a composite notice, showing the name or names of the person or persons elected. (emphasis added)

13. From the foregoing, the submissions by the power to gazette the person returned as duly elected lies with the chairperson of the 3rd Respondent and that there is currently no such chairperson is not disputed.

14. Section 5 (c) of the IEBC Act 2011 provides for composition and appointment of the Commission as follows1. The Commission shall consist of a chairperson and six other members appointed in accordance with Article 250 (4) of the Constitution and the provisions of this Act.2. The chairperson and members of the Commission shall be appointed in accordance with the procedure set out in the First Schedule.3. The process of replacement of a chairperson or a member of the Commission shall commence at least six months before the lapse of the term of the chairperson or member of the Commission.4. The procedure set out in the First Schedule shall apply, with the necessary modifications, whenever there is a vacancy in the Commission.

15. In the present circumstances, no replacement process has been initiated to fill the gap in the commission and the country generally finds itself in a unique situation and it since it is not known when IEBC shall be properly constituted, the Applicant and other candidates and voters who require action by IEBC continue to have their rights violated and infringed through no fault of their own.

16. The issue therefore is whether the court can stand helpless in the current situation.

17. That the 3rd 1st Respondent has been compelled by this Court to give effect to its orders which were duly extracted and served upon it is not in dispute. The action which the 3rd Respondent is required to undertake is a simple administrative one of placing a notice communicating the decision of this Court and not to determine whether or not to comply with the court order. (See Michelle Kakuma Omwoyo vs IEBC & Speaker, Nyamira County Assembly (2023) Unreported, Okwany J and Bett Anne Jepleting vs IEBC & 3 Others (2023) Unreported, Mrima J.

18. It is to be remembered that court orders are not made in vain. (See B vs. Attorney General [2004] 1 KLR 431. Courts frown upon parties that do not comply with court orders. If for any reason the parties had difficulty in complying with the court orders, the honourable thing to do was to come back to court and explain the difficulties faced by the need to comply with the order for the reason that once a Court order is made in a suit, the same is valid unless set aside on review or on appeal.

19. In Central Bank of Kenya & another v Ratilal Automobiles Limited & 10 others [2018] eKLR, the Court of Appeal held that Judicial power in Kenya vests in the Courts and other tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a Court of law.

20. That 1st Respondent/Applicant ought to await the constitution of the Commission as contended by the 3rd Respondent is therefore untenable for it amounts to breach of this court’s express orders.

21. Flowing from the foregoing analysis, I find that the Notice of Motion dated 11th October,2023 and filed on 12th October, 2023 has merit and it is allowed in the following terms:a.Marjan Hussein Marjan, the Chief Executive Officer of the 3rd Respondent (IEBC) or any other person occupying the said office, be and is hereby compelled to, within 14 days hereof, cause to be published a notice in the Gazette, deleting the name of Kelvin Waruguru under the category of special seats (a representative of the minority community) and replacing it thereof with the name of Abdi Fatuma Abdullahib.Upon the publication in the Kenya Gazette as per order (a) above, the Speaker of the County Assembly of Isiolo County shall, at the immediate next sitting of the County Assembly of Isiolo County after such publication, swear in Abdi Fatuma Abdullahi as a Member of County Assembly (MCA) of the County Assembly of the Isiolo County.c.For purposes of further protecting the dignity of the administration of justice and the rule of law and pending compliance as ordered above, the Speaker of the County Assembly of Isiolo County, the Clerk to the County Assembly of Isiolo County and the County Assembly of Isiolo County shall forthwith cease to accord the said Kelvin Waruguru the status, rights, privileges and any other entitlement as a Member of the County Assembly of Isiolo County.d.The Appellant and 3rd Respondent herein shall jointly and severally bear the costs of this application.

DATED AT MERU THIS 14th DAY OF December 2023WAMAE.T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Appellant - N/A for Mr. Abwuor for Abwuor & Co. AdvocatesFor 1st Respondent - Mr. Kariuki for P.K.Njiiri & Co. AdvocatesFor 2nd Respondent - Mr.Lelionka for Andrian Kamotho Njenga & Co. AdvocatesFor 3rd Respondent - Ms. Kiboi for Hassan Mutembei & Co. Advocates