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MOSES WANJALA LUKOYE V BENARD ALFRED WEKESA SAMBU & 3 OTHERS[2013]eKLR

REPUBLIC OF KENYA

High Court at Bungoma

Election Petition 2 of 2013

IN THE MATTER OF THE ELECTION FOR MEMBER OF THE NATIONAL ASSEMBLY FOR WEBUYE EAST CONSTITUENCY

AND

MOSES WANJALA LUKOYE................................................................PETITIONER

Versus

BENARD ALFRED WEKESA SAMBU......................................1ST RESPONDENT

JOYCE WAMALWA, RETURNING OFFICER,

WEBUYE EAST CONSTITUENCY...........................................2ND RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION......................................................................3RD RESPONDENT

THE FUND MANAGER, WEBUYE CONSTITUENCY

DEVELOPMENT FUND…...................................................…4TH RESPONDENT

RULING

THE QUESTION OF DUAL PARTY MEMBERSHIP

[1]      The question that has arisen is whether or not the High Court can determine a an alleged illegality in an election founded on the fact that the 1st Respondent contested for and was elected as a Member of the National Assembly for Webuye East Constituency in the general elections held on 4th March, 2013 while he held    membership in two political parties. Subtle arguments were presented by counsels the gist of which is as below.

RESPONDENTS’ QUARREL

[2]      The Respondents fastened a legal objection to the line of cross-examination adopted by Professor Sifuna especially on whether or not the 1st Respondent held membership in ODM and UDF parties when he contested for the seat of Member of National  Assembly during the last general elections held on 4th of March, 2013.

[3]      Mr Onsando submitted that the Professor was dwelling on matters of nomination of    the 1st Respondent to vie for Member of National Assembly, which were pre-election issues and within the purview of the dispute resolution mechanisms set out in Section 74 of the Elections Act, 2011. IEBC was the one mandated under that section to resolve such nomination issues. Any party with such an issue should have raised it with IEBC as provided for under section 74 of the Elections Act before the election and not after.

[4]      According to Mr Onsando, the High Court has a clear jurisdiction to hear and determine election disputes arising out of the election of 4th March, 2013 and not nomination issues prior to the election. These issues being canvassed by the Professor    are, therefore, misconceived.

[5]      Mr Mutubwa supported the objection by Mr Onsando. He posited that all disputes on nomination of political parties’ candidates to vie in a general election fall outside the       jurisdiction of the court. Those are matters within the exclusive jurisdiction of the IEBC as granted under Article 88(4) (e) of the Constitution. He cited the case of Francis Gitau Parsimei and Two others v TNA [2012] eKLR in support of his said submissions. The court in that case held that dispute resolution mechanisms provided for under the law must always be adhered to by parties.

[6]      He further urged that under section 120 of the Evidence Act, the Petitioner is estopped from raising the issue on nominations since he did not raise it within the legal        framework provided under section 74 of the Elections Act. It should be taken that the omission thereof made the 1st Respondent to believe in the truth of the state of affairs  obtaining on the matter. On that basis estoppel applies on the Petitioner on the issues at hand. 

[7]      The Petitioner should be estopped from pursuing the issue at this late stage.

[8]      Mr Ojuro also supported the objection. He added that section 74 of the Elections Act has placed time-lines within which the disputes on nominations should be lodged with      and determined by the IEBC. That time has expired long ago and also the election has passed which makes that issue on nomination moot at this stage.

Professor Sifuna responded

[9]      The Professor respondent to the issues raised in his characteristic forceful manner. He submitted that the doctrine of estoppel has been misunderstood by the counsel for the  2nd and 3rd Respondents. To him, the estoppel in section 120 of the Evidence Act does not apply to the facts of this case. It is only Honourable Alfred Sambu who could claim to have been misled and not IEBC. When cautioned by the court that Mr Mutubwa did not submit that IEBC was misled, the Professor respectfully restricted himself to the 1st Respondent.

[10]    The Professor submitted further that the issue here is not one of nomination but of the 1st Respondent offering himself for election while he held membership in two political parties. That was an illegality which the 1st Respondent perpetuated. According to the Professor, when an illegality is discovered, it does not matter even if it is so discovered after the election. The court would still have jurisdiction to fix the illegality. Section 74 of the Elections Act should be read together with section 14 of the Political Parties Act which requires that a candidate who was initially a member of a political party other than the one he is contesting on should tender a resignation to the previous party and give notice to the Clerk to the National Assembly of such resignation where the  candidate was a Member of Parliament. The 1st Respondent was a Member of the  National Assembly at the time and should have complied with the law. The Professor said that had the Respondents waited for him to finish his cross-examination of the 1st Respondent, they would have realized that he was to ask him to provide information on his resignation from ODM party as by law required.

[11]    Section 74 of the Elections Act does not apply in this case. The issues being raised  by the Petitioner are matters arising out of an election petition and are, therefore, part of the petition. They are not matters of nomination of party candidates under Article 88(4)(e) of the Constitution and section 74 of the Elections Act. These concerns are     on eligibility to vie for election about which the court has jurisdiction to inquire.

[12]    The Professor pressed on. He told the court that the objection as raised is an interruption of court proceedings. His reasons were that the objection was directed at the right to cross-examination whose scope is clearly set out under section 154 of the  Evidence Act which the Professor sort of thinks should be boundless. He said that cross-examination is aimed at providing sufficient information for the Petitioner to win his case. He caused a light moment in court and amongst the audience when he  asserted that indeed his client wants to win the petition.

[13]    The professor submitted to court the following judicial authorities in support of his submissions:

a) Kituo Cha Sheria v John Ndirangu Kariuki and Another [2013]e KLR
b) Luka Angaiya Lubwayo & Another v Gerald Otieno Kajwang and Another [2013]e KLR
c) Seascapes Ltd v Development Finance Co. Ltd [2009]e KLR
d) Doge v Kenya Canners Ltd NBI HCCC NO.1832 of 1982 e KLR

          For those reasons he prayed that the objection should be dismissed.

Mr Onsando and Ojuro replied

[14]    Mr Onsando and Ojuro replied. The questions that were put to the 1st Respondent were aimed at seeking information from him whether he belonged to two political parties when he vied for Member of National Assembly on 4h March, 2013. The 1st Respondent replied and insisted that he belonged to only one party-UDF. It has not been demonstrated through evidence by the Petitioner that the 1st Respondent belonged to two parties at the time of the elections and, therefore, in the absence of enough material before the court, the kind of cross-examination being led by the Petitioner’s counsel was not in order.

[15]    Mr. Ojuro added that section 154 of the Evidence Act is subject to sections 157 and 158 of the same Act which entitles the court to disallow cross-examination on issues that are not relevant to the proceedings.

DETERMINATION OF THE ISSUES

Issues

[16]    I can identify that the major issues for determination by the court are two-fold;

1)       Whether or not the court can inquire into an illegality committed in the nomination of the 1st Respondent to vie for Member of National Assembly in the election held on 4th March, 2013; and

2)      Whether or not the Petitioner is in order to ask questions in cross-examination on matters of nomination of the 1st Respondent without a proper basis having been laid in the pleadings and by evidence tendered to court by the Petitioner.

3)       The issues on scope of cross-examination as well as the question of estoppel are subsumed in the issues as I have framed them and shall be accorded  appropriate proportion of importance in the ruling. They have not been in- subordinated whatsoever.

Inquiry into an illegality

[17]    By the very nature of his engagement and the oath of office to which every judicial officer ascribes upon appointment, the work of a judge is to suppress fraud and illegality when he sees it, and to promote justice at all times without fear or favour. Similar tone was always present in the judgments of Lord Denning whenever he was confronted with manifest fraud and illegality. I also do not hesitate to add that fraud and illegality unravels everything in any transaction including elections. Therefore, the court should deal with fraud and or illegality on the spot when it exhibits itself on the face of the court. But, it is quite apart from that, when the court is asked to inquire into some alleged illegality by a party in his pleadings.   In that case, as it is in the present, the party alleging must prove the illegality alleged. Secondly, it being a justiciable issue, the court must be possessed of the requisite jurisdiction to adjudicate on the issue. I need not recite the classic case of Lillian ‘’S’’ on jurisdiction for fear of becoming too obvious. In the instant case, the Petitioner has alleged that the 1st Respondent was a member of ODM when he contested for and was elected on a UDF ticket as a Member of the National Assembly for Webuye East Constituency during the 4th of March, 2013 general elections. Is that a matter that this court can determine especially in an election petition? Or is it a matter that ought to have been raised before IEBC under section 74 of the Elections Act? 

[18]    I first establish the relevant provisions of the Constitution which will guide the decision of the court on the questions I have posed. Article 165 gives the High Court unlimited original jurisdiction in civil and criminal cases. But with regard to election petitions challenging election of a Member of Parliament, this court draws its      jurisdiction from Article 105 of the Constitution. I should also make reference to  Article 165, particularly 165(3) (d) (ii) of the Constitution which provides:

165(3) (d)-jurisdiction to hear any question respecting the interpretation   of this Constitution including the determination of-

(i)………………………….

(ii) any question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

          As shall become apparent shortly, these provisions are useful in the ruling.

[19]    Article 165(3) (d) (ii) of the Constitution is relevant because the process and conduct of the general election including nomination of candidates is done under the authority  of the Constitution and the laws which have been enacted by Parliament under the authority of the Constitution. See Chapter Seven and Chapter Eight of the Constitution.

[20]    But, will that Article obliterate the constitutional provision in Article 88(4) (e) of the Constitution, and Section 74 of the Elections Act that settlement of electoral disputes relating to or arising from nominations excluding election petitions and disputes    subsequent to declaration of results is exclusively ordained for the IEBC? First, that is a constitutional mandate, and secondly Section 74 of the Elections Act simply  reproduces Article 88(4) (e) of the Constitution and spells out the procedure and  process of settlement of disputes covered under Article 88(4) (e) of the Constitution. The law on observance of such dispute resolution mechanisms provided under a     statute is a strict one and well settled. And there are legion authorities which I do not    need to multiply but see the case of Speaker of National Assembly v Njenga Karume [2008] I KLR 425 that:

‘’In our view there is considerable merit…..that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed’’.

[21]    Initial indicators are that alleged dual party membership of the 1st Respondent should have been raised with the IEBC at the time it was carrying out nomination exercise. I believe such a matter was going to receive appropriate attention from the Registrar of     Political Parties as well as the IEBC, for under section 14 of the Political Parties Act such candidate with dual party membership would not be eligible for election. I hereby buttress the position of the law that a procedure for dispute resolution which has been set out in a statute must be adhered to by any person who is aggrieved by a  matter covered under that procedure. And so I hold in this case that the matter ought to have been raised under section 74 of the Elections Act.

[22]    However, since that issue of dual party membership has been alleged in the petition, I am persuaded to agree with the Professor that it is part of the petition. The only exposition on which I respectfully disagree with the Professor is his attempt to remove the alleged dual membership from the purview of disputes relating to nomination of  candidates to which Article 88(4) (e) of the Constitution and section 74 of the Elections Act apply. He submitted that the Petitioner is challenging eligibility of the 1st Respondent to be a candidate in the election but not the nomination of the 1st Respondent by UDF party. In one sense, the argument seems quite attractive. But, in another sense, it falls short of severing the eligibility argument from nomination as envisage in the Constitution. One is not dissuaded to depart from the provisions of Article 99(1) (c) of the Constitution which integrally ties eligibility to proper nomination of the candidate by a political party. Dual membership should therefore found a dispute under Article 88(4) (e) of the Constitution and section 74 of the Elections Act, and IEBC could refuse to accept the nomination of such a candidate for election. Therefore, the difference being drawn by the Professor between nomination and eligibility is a tenuous one without much conceptual bearing on, or deviation from the essentials of nomination of candidates and their eventual eligibility for election. 

[23]    Even if it was presumed for a moment that the court would have jurisdiction to determine the issue raised, there are important considerations to remember. What is the purport of section 14(5) of the Political Parties Act? The section provides that a person who; forms; joins in the formation of; joins; or in any manner, publicly advocates the formation of or promotes the ideologies, interests or policies of another political part; shall, notwithstanding the provisions of subsection (1) or the provisions of any other written law, be deemed to have resigned from the previous political party. The question would be, other than the formal requirement of formal resignation, in what other circumstances will a candidate be deemed to have resigned from the previous party? These are real issues which will need full proof before the appropriate forum. It is not a matter that can be decided in cross-examination.

The scope of cross-examination

[24]    The foregoing, immediately calls me to consider the question of the scope of cross-   examination. Cross-examination is covered under Part IV of the Evidence Act. Any question may be put to a witness in cross-examination, except, a limitation is placed by the law that questions which; are not relevant to the proceedings; are indecent,  scandalous, insulting or annoying should not be asked. Even when they are asked the court has discretion under section 157, 158, 159 and 160 of the Evidence Act to warn the witness that he is not obliged to answer such questions. I do not therefore agree  with the professor that cross-examination is boundless. It is circumscribed within the    legal bounds in Part IV of the Evidence Act. Equally, although the Petitioner’s primary intention is to win his case, he is also together with his counsel bound by the overriding objective to assist the court in arriving at a just, proportionate and  expeditious disposal of cases. The entry of the overriding objective into our judicial  jurisprudence changed the earlier notion that all a counsel should do is to win the client’s case into a peremptory command to assist the court achieve the overriding objective for the sake of the interest of justice. That is why it is now emphasized by       way of statutory provisions that full and true disclosures must be made by parties in a    suit.

[25]    The court decided on what constitutes the words irrelevant, indecent, scandalous, insulting or annoying in the case of BGM HC EP NO 3 OF 2013. Of particular relevance to this case is what the term irrelevant would entail and I said in the quoted case that:

The allegations or averments…. should also not be irrelevant; having no probative value; not tending to prove or disapprove a matter in issue. ...the averment should be supported by evidence within the affidavit itself or by some other person in the proceeding, in this case, by a witness through an affidavit filed in court in accordance with the Elections (Parliamentary and County Elections) Petition Rules, 2013.

[26]    I have good reasons for going that way. The Petitioner has closed his case. He did not place information from the Registrar of Political Parties or the respective political parties in support of his allegation in the pleadings. The Hansard or recordings of receipt of notices of resignation by the National Assembly should have been availed to the court by the Petitioner and not the 1st Respondent. This was after the court had made a ruling that he should seek the information from those offices. In the absence of that evidence, the Petitioner should not shift the burden of proof to the 1st Respondent to prove the Petitioner’s case through cross-examination. Indeed we have not reached a point where evidential burden has been created on the 1st Respondent in accordance with the law. See Halsbury’s laws of England, 17th Edition on legal burden of proof and evidential burden.

[27]    Couple what I have said with the provisions of section 14(5) of the Political Parties Act and the inescapable conclusion is that the questions asked are of no probative value to prove or disapprove issues before the court, hence the limitation I have placed on the scope of cross-examination regarding the matter in issue. In taking that decision, I am also guided by the position I have taken on jurisdiction under Article 88(4) (e) of the Constitution. After all, the witness answered the questions.         

[26]    I should state also that there is merit to suggest that where there is clear illegality in the process of elections, and IEBC has declined to act on it or acted in contravention of the law, nothing would prevent the court to inquire into it and give effect to any constitutional remedy provided in law. See the case of Narok County Council v Trans Mara County Council [2000] E.A. 161. I think, I find support in the constitutional principle that the Constitution is self-referential and will not suffer wrong without a remedy. I reckon also that election disputes question the integrity of the electoral process, and an illegality in the process which compromises the integrity thereof, should not escape the scrutiny of the court, and it is possible to determine the illegality under Article 165(3) (d) (ii) of the Constitution. See the case of Trusted Society of Human Rights Alliance v AG and 2 others [2012] eKLR. 

Estoppel

[27]    Before I close, I wish to address briefly the doctrine of estoppel in section 120 of the   Evidence Act. I agree with the Professor that it is only the 1st Respondent who may have been misled and not IEBC. Except, I think and hold that, the omission by the Petitioner to raise the issue at the right time and before the correct forum is a matter that would raises estoppel as a defence under section 120 of the Evidence Act.

Decision

[27]    I, therefore, caution the 1st Respondent that he is not obliged to answer questions on why he did not annex resignation letter or notice to the ODM party and the Clerk, National Assembly, respectively. But since he gave his answers, they are sufficient for now.

Dated, signed and delivered in open court at Bungoma this 24th day of June, 2013

 
F. GIKONYO
JUDGE

In the presence of:

Khisa CA

Mutubwa for 2nd and 3rd Respondents

Ojuro for 4th Respondent

Onsando Osiemo for 1st Respondent

Petitioner represented by Professor Sifuna.

F. GIKONYO
JUDGE
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