Extent to Which Courts can Interfere with Parliamentary Processes which are in Actual Progress

Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017]eKLR

Petition 32 of 2014

Supreme Court of Kenya

M Ibrahim, J B Ojwang, S Wanjala, N S Ndung’u & I Lenaola, SCJJ

December 15, 2017

Reported by Ribia John

Constitutional Law – separation of powers – where legislative processes and outcomes are challenged in Court - principles applicable to the doctrine of separation of powers in Kenya’s constitutional democracy - whether Courts could interfere with Parliamentary processes which were in actual progress

Jurisdiction – jurisdiction of the Supreme Court – appellate jurisdiction of the Supreme Court – appeals as of right in cases involving the interpretation or application of the Constitution - whether the Supreme Court had the jurisdiction under article 163(4)(a) of the Constitution to determine an appeal that challenged the issuance of conservatory orders that estopped the removal of a County Governor by a County Assembly and the Senate by the High Court and the Court of Appeal – Constitution of Kenya, 2010 article 163(4)(a)

Constitutional Law - County Government - removal of a County Governor from office - impeachment of a County Governor via a decision of a County Assembly and the Senate - where impeachment proceedings had been estopped by the High Court – where the impeachment proceedings were carried out in contempt of the orders of the High Court - whether courts had the jurisdiction to adjudicate over the constitutional function of impeachment that was vested in a County Assembly - what was the tenability orders from Courts of law  that directly abrogated the discharge of constitutional legislative processes - whether conservatory orders that were issued to effect the reinstatement of a County Governor who had been removed from office, pending the hearing of a petition which questioned the removal of the Governor from office could be sustained - Constitution of Kenya 2010 articles 165(3)(d); County Government Act section 33.

Constitutional Law – constitutional timelines – nature of constitutional timelines - where there existed standing orders that guided the functioning of the legislature and ensured the execution of constitutional timelines - whether constitutional timelines were mandatory or could be altered by the Courts - whether timelines set by standing orders that guided the constitutional functioning of the legislature were of the same nature as constitutional timelines – County Government Act section 33(3); County Assembly of Embu Standing Orders,  standing order 61

Brief Facts

The Embu County Assembly and the Senate impeached the 1^st Respondent who had been elected as the County Governor for Embu County. The High Court had issued conservatory orders dated January 23, 2014 and February 3, 2014, to prevent the impeachment of the Governor but the impeachment, which caused the 1^st Respondent’s removal from office, was still done.

The 1^st Respondent challenged the impeachment and made an application before the High Court that sought interim orders for his reinstatement into office and an order of contempt of Court against the Appellants for allowing an impeachment motion to be discussed and passed. The 1^st Respondent was successful in his application; the Court held that all proceedings conducted in disobedience of the Court orders were null of void and found the Appellants guilty of contempt. Aggrieved by the decision, the Appellants filed an Appeal at Court of Appeal that challenged the findings of the High Court; however the Court of Appeal affirmed the findings of the High Court.

Aggrieved by the decision of the Court of Appeal, the Appellants filed the instant appeal on grounds that the orders of the High Court and the Court of Appeal in the instant matter offended articles 159, 174 and 175 of the Constitution which touched on the doctrine of separation of powers. They contended that where the High Court had power under article 165 of the Constitution to exercise supervisory jurisdiction over the actions of State organs, that power did not extend to interfering with the ongoing processes before such State organs. They also contended that the Appellate Court was in error in holding that the Appellants had failed to apply the Assembly Standing Orders to curtail debate for the law expressly vested the power to determine the import and the application of standing orders in the Speaker, and that the Speaker exercised that in line with the doctrine of separation of powers.

Issues

         i.            What were the principles applicable to the doctrine of separation of powers in Kenya’s constitutional democracy?

       ii.            Whether Courts could interfere with Parliamentary processes which were in actual progress

      iii.            Whether the Supreme Court had the jurisdiction under article 163(4)(a) of the Constitution to determine an appeal that challenged the issuance of conservatory orders that estopped the removal of a County Governor by a County Assembly and the Senate by the High Court and the Court of Appeal

    iv.            Whether conservatory orders that were issued to effect the reinstatement of a County Governor who had been removed from office, pending the hearing of a petition which questioned the removal of the Governor from office could be sustained.

      v.            What was the tenability orders from Courts of law  that directly abrogated the discharge of constitutional legislative processes

    vi.            Whether courts had the jurisdiction to adjudicate over the constitutional function of impeachment that was vested in a County Assembly.

   vii.            Whether constitutional timelines were mandatory or could be altered by the Courts.

 viii.            Whether timelines set by standing orders that guided the constitutional functioning of the legislature were of the same nature as constitutional timelines.

Relevant Provisions of the Law

Constitution of Kenya, 2010

            Article 165(3)(d)

(3)       Subject to clause (5), the High Court shall have—

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

(i)        the question whether any law is inconsistent with or in contravention of this Constitution;

(ii)       the 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;

(iii)      any matter relating to constitutional powers of State organs in respect of County Governments and any matter relating to the constitutional relationship between the levels of government; and

(iv)      a question relating to conflict of laws under Article 191

            Article 163(4)(a)

(4)       Appeals shall lie from the Court of Appeal to the Supreme Court—

(a)      as of right in any case involving the interpretation or application of this Constitution;

County Governments Act

Removal of a governor

(1)       A member of the county assembly may by notice to the speaker, supported by at least a third of all the members, move a motion for the removal of the governor under Article 181 of the Constitution.

(2)       If a motion under subsection (1) is supported by at least two-thirds of all the members of the county assembly—

(a)      the speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days; and

(b)      the governor shall continue to perform the functions of the office pending the outcome of the proceedings required by this section.

(3)       Within seven days after receiving notice of a resolution from the speaker of the county assembly—

(a)      the Speaker of the Senate shall convene a meeting of the Senate to hear charges against the governor; and

(b)      the Senate, by resolution, may appoint a special committee comprising eleven of its members to investigate the matter.

(4)       A special committee appointed under subsection (3)(b) shall—

(a)      investigate the matter; and

(b)      report to the Senate within ten days on whether it finds the particulars of the allegations against the governor to have been substantiated.

(5)       The governor shall have the right to appear and be represented before the special committee during its investigations.

(6)       If the special committee reports that the particulars of any allegation against the governor—

(a)      have not been substantiated, further proceedings shall not be taken under this section in respect of that allegation; or

(b)      have been substantiated, the Senate shall, after according the governor an opportunity to be heard, vote on the impeachment charges.

(7)       If a majority of all the members of the Senate vote to uphold any impeachment charge, the governor shall cease to hold office.

(8)       If a vote in the Senate fails to result in the removal of the governor, the Speaker of the Senate shall notify the speaker of the concerned county assembly accordingly and the motion by the assembly for the removal of the governor on the same charges may only be re-introduced to the Senate on the expiry of three months from the date of such vote.

(9)       The procedure for the removal of the President on grounds of incapacity under Article 144 of the Constitution shall apply, with necessary modifications, to the removal of a governor.

(10)     A vacancy in the office of the governor or deputy governor arising under this section shall be filled in the manner provided for by Article 182 of the Constitution.

Held

1.      An expansive scope to the concept of interpretation and application of the Constitution grasped different issues of law such as contempt orders. The law of contempt of Court could hardly be screened from the grasp of interpretation and application of the Constitution.

2.      The limits on judicial authority and the Constitution’s design of entrusting certain issues to other organs of Government were vital principles. The Constitution dispersed powers among various constitutional organs. Where it was alleged that any of those organs had failed to act in accordance with the Constitution, then the Courts were empowered by article 165 (3)(d)(ii) of the Constitution to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of the Constitution.

3.      No arm of Government was above the law. Kenya’s democracy being a constitutional democracy, the Constitution was the guiding light for the operations of all State Organs. The Court’s mandate, where it applied, was for the purpose of averting any real danger of constitutional violation.

4.      As regards to separation of powers, the following principles applied to Kenya;

a)    each arm of Government had an obligation to recognize the independence of other arms of Government;

b)     each arm of Government was under duty to refrain from directing another Organ on how to exercise its mandate;

c)     the Courts of law were the proper judge of compliance with constitutional edict, for all public agencies; but that was attended with the duty of objectivity and specificity, in the exercise of judgment;

d)     for the due functioning of constitutional governance, the Courts was to be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;

e)    in the performance of the respective functions, every arm of Government was subject to the law.

5.      The effective Court strived to persuade, and not to pontificate.  It spoke a moderate and restrained voice, engaging in a dialogue with, not a diatribe against, co-equal departments of government, state authorities, and even fellow Courts.

6.      The constitutional mandate to impeach a Governor was duly assigned to the County Assembly and the Senate. Article 181 of the Constitution defined the circumstances under which a county Governor may be removed from office, article 181(2) specifically provided that Parliament would enact legislation providing for the procedure of removal of a Governor. In line with article 181(2), Parliament enacted the County Governments Act which, at section 33, provided for the procedure for removal of a Governor. The detailed mode of discharge of County Assembly business was not defined in the section 33, but it was provided in the Standing Orders. Standing order 61 of the County Assembly of Embu Standing Orders provided for the mode of the removal of the Governor.

7.      A constitutional mandate, which embodied the remit of impeachment, vested in a County Assembly. From the facts of the instant case, it had not been represented that the Speaker or the Clerk of the County Assembly bypassed any of the procedural steps applicable to impeachment proceedings. It was a fact that a motion for impeachment of the Embu Governor was moved on January 16, 2014. Since then, in accordance with standing order 61, discussion upon the motion was to take place upon the expiry of seven days, the matter being disposed of within three days. The relevant Standing Orders were silent, on notification to the Governor of such a call for impeachment (though there were provisions for an impeached Governor to be heard in Senate). The said Standing Orders bore no provision on how the Governor was to participate in the process, or defend himself before the County Assembly.  Such a procedural setting, however, was not challenged, even though a conservatory Order was issued stopping a County Assembly from performing its prescribed constitutional mandate.

8.      The Court’s word was the people’s solemn edict calling for obedience; but it was precisely the sanctity of that word that dictated utmost care, focus and assiduity, in the Court’s undertaking.

9.      While the Supreme Court’s bore its mind on the precious caution for sustaining judicial authority, the Supreme Court had to consider the uniqueness of the instant case, which was embodied in the express terms of a comprehensive, newly-formulated constitutional document: especially the fact that it bore express terms on the separation of powers. 

10. Interpretation of the Constitution called for a delicate balance in the respective mandates of the different arms of government. While such refinements in the reserved governmental mandates had not elicited focussed assessment at the High Court, ex-parte conservatory orders were made: the effect being to hamstring the due performance of the constitutional mandate of the County Assembly. Notwithstanding the conventional judicial perception of ultimacy in judicial orders, the question that remained was the tenability of such Orders that directly abrogated the discharge of commanded legislative-agency process.

11. The integrity of Court Orders stood to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocated specific mandates and functions to designated agencies of the State.  Such restraint, in the context of express mandate-allocation under the Constitution, was essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency was to encumber another to stall the constitutional motions of the other. The best practices signalled that the judicial organ had to practice the greatest care, in determining the merits of each case.

12. Timelines of the Constitution were of mandatory character, even where Court process itself was the subject.   Expressly prescribed constitutional time-frames were binding on the governance processes in place. Even though precedent on the mandatory nature of constitutional timelines were drawn only from the Constitution’s scheme of electoral justice, the precedents nonetheless bore a wider signal, regarding time, as it was to direct the various agencies of the State.

13. A seven-day time-frame was provided for in standing order 61 of the County Assembly of Embu Standing Orders. Standing orders, all by themselves, by no means rested at the direct level of the Constitution, or indeed, the statute law. Even though standing orders guided the constitutional functioning of the legislature, it was necessary to consider their constitutionality or otherwise.

14. However, the standing orders, the individual merits of which were not contested, could be said to be properly coalesced in the constitutional scheme of legislative functions, and thus, to constitute an organic framework for the legislative agency’s operations, on the basis of all available information.

15. The effect was that, a methodical and conscientious inquiry would show the County Assembly to have been operating quite properly, within the constitutional scheme of devolution, and running its legislative processes within the ordinary safeguards of the separation of powers and consequently, quite legitimately outside the path of the ordinary motions of the judicial arm of State. On that basis, there would have been hardly any scope for the deployment of the Court’s conservatory Orders more particularly without first hearing the Petitioners.

16. The exceptional circumstance of the instant case, with a complex scenario of justiciabilities from contrasted standpoints, would lend justification to the non-effectuation of contempt orders at the beginning; and consequently, as would be otherwise required, the reality of there not having been immediate compliance could be accommodated by the Supreme Court.

Appeal allowed.

Orders:

        i.            Conservatory Orders issued on January 23, 2014 in Kerugoya Petition No. 3 of 2014 (formerly Embu Petition No. 1 of 2014), were annulled.

      ii.            The judgment and order of the Court of Appeal delivered on September 30, 2014 in Civil Appeal No. 24 of 2014 was set aside.

    iii.            Each party was to bear its own cost.

Parties:  Mate & another v Martin Nyaga Wambora & another [2017] KLR-SCK

East Africa

Cases

1.    Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others Petition 628, 630 of 2014 & 12 of 2015 (Consolidated) (Explained)

2.    Commercial Bank of Africa v Ndirangu [1990-1994] EA 69-(Cited)

3.    Erad Suppliers & General Contractors Limited v National Cereals & Produce Board [2012] 2 KLR 454 – (Cited)

4.    Gachege, Christine Wangari v Elizabeth Wanjiru Evans & 11 others Civil Application No 233 of 2007 – (Cited)

5.    In Re the Matter of the Interim Independent Electoral Commission Constitutional Application 2 of 2011 (Explained)

6.    In the matter of an Application by Gubaresh Singh & Sons Ltd Miscellaneous Civil Case No 50 of 1983 – (Cited)

7.    Joho, Hassan Ali & another v Suleiman Said Shahbal & 2 others Petition No 10 of 2013 – (Cited)

8.    Judicial Service Commission v Speaker of The National Assembly & 8 others, Petition No 518 of 2013 - (Explained)

9.    Kaparo & 5 others v Ngoge [2012] 2 KLR 419–(Cited)

10. Karua, Martha v Radio Africa Ltd T/A Kiss FM Station and 2 others, Nairobi HCCC No 288 of 2004

11. Kigula & others v Attorney-General [2005] AHRLR 197 (UgCC 2005) – (Cited)

12. Macharia & another v Kenya Commercial Bank Limited & others [2012] 3 KLR 199 – (Mentioned)

13. Mate, Justus Kariuki & another v Martin Nyaga Wambora & another Application No 37 of 2014 – (Followed)

14. Mumo Matemu v Trusted Society of Human Rights Alliance, Civil Appeal No 290 of 2012 – (Explained)

15. Nduttu & 6000 others v Kenya Breweries Ltd & another [2012] 2 KLR 804– (Mentioned)

16. Odinga, Raila & 5 others v Independent Electoral and Boundaries Commission and 3 others Petition No 1 of 2017– (Considered)

17. Okoiti, Okiya Omtatah & 3 others v Attorney General & 5 others Petition 227, 281 & 282 of 2013 (consolidated) – (Explained)

18. Refrigerator and Kitchen Utensils Ltd v Gulabchand Popatlal Shah & others Civil Appeal No 39 0f 1990- (Cited)

19. Republic v National Assembly Committee of Privileges & 2 others ex-parte Ababu Namwamba, JR Case No 129 of 2015 – (Explained)

20. Speaker of the Senate & another v Attorney General & 4 others, Reference No 2 of 2013- (Explained)

21. Waititu, Ferdinand v Independent Electoral and Boundaries Commission (IEBC) & 8 others Civil Appeal No 137 of 2013 – (Affirmed)

22. Wandayi, James Opiyo v Kenya National Assembly & 2 other Judicial review Application No 258 of 2016 - (Explained)

South Africa

1. Doctors for life international v Speaker of the National Assembly and others [2006] ZACC 11- (Cited)

2. National Coalition for Gay and Lesbian Equality & 13 others v Minister for Home Affairs & 2 others [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39- (Cited)

3. Speaker of the National Assembly v Patricia De Lile MP & another Case No 297/98 (ZASCA 50)-(Cited)

Canada

1. Canada (House of Commons) v Vaid, [2005] 1 SCR 667; 2005 SCC 30 – (Explained)

2. Harvey v New Brunswick (Attorney General), [1996] 2 SCR 876 – (Explained)

United Kingdom

1. Hadkinson v Hadkinson [1952] 2 All ER 567 – (Considered)

2. Isaacs v Robertson [1984] 3 All ER 140 – (Considered)

3. M v Home Office and another [1992] 4 All ER 97 –(Considered)

East Africa

Statutes

1.    Constitution of Kenya, 2010, articles 10,35, 47, 50,159(2)(e); 163(4) (a) (b)(5);165 (3)(d);174;175;177(1)(a)(d);178;179;181(2);196(3);197- (Interpreted)

2.    Civil Procedure Act, (cap21) – In general

3.    Civil Procedure Rules, 2010 order 48 – (Interpreted)

4.    County Government Act, 2012 (Act No 17 of 2012) sections 15, 17- (Interpreted)

5.    National Assembly (Powers and Privileges) Act (cap 6) sections 12, 29 – (Interpreted)

6.    Public Finance Management Act, 2012 (Act No 18 of 2012)  - In general

7.    Public Procurement and Disposal Act, 2005 (Act No 3 of 2005) – In general

8.    Supreme Court Act, 2011 sections 3,15 (2) (Act No 7 of 2011) – (Interpreted)

 9. Supreme Court Rules, 2012 rules 9, 33  (Act No 7 of 2011 Sub Leg) – )Interpreted)

United Kingdom

1. Rules of the Supreme Court of England, 2009, Order 52 – (Interpreted)

Texts & Journals

1. Ginsburg, RB., (Ed) (1992)New York University Law Review, Vol 67  1185, at p 1186

2. Sinclair, Guy Fiti, (Eds) (2006) Parliamentary Privilege and the Polarization of Constitutional Discourse in New Zealand” Waikato Law Review; Taumauri Vol 14 [80]-101

Advocates

1. Prof Tom Ojienda SC for the Appellants

Constitutionality of the Mandatory Nature of the Death Sentence provided under section 204 of the Penal Code

Francis Karioko Muruatetu & another V Republic

Petition No. 15 of 2015

Supreme Court of Kenya

Maraga CJ, Mwilu DCJ; Ojwang, Wanjala, Njoki AND Lenaola SCJJ

December 14, 2017

Reported by Robai Nasike Sivikhe

Constitutional Law- fundamental rights and freedoms- right to a fair hearing- right to a fair hearing viz-a-viz the aspect of mitigation upon meting a death sentence - the necessity of mitigation where a death sentence has been imposed upon a person- whether a person facing the death sentence most deserved to be heard in mitigation because of the finality of the sentence- whether the mandatory nature of the death sentence denied a person the right to a fair trial with regard to mitigation- Constitution of Kenya, 2010, articles 25 (c), 48 and 50 (1); Penal Code, section 204

Constitutional Law- fundamental rights and freedoms- right to human dignity- right to human dignity viz-a-viz the aspect of mitigation upon meting a death sentence- where convicts were subjected to the same mandatory sentence without the Courts considering their mitigating circumstances, their diverse characters and circumstances of the crime- whether imposing a death sentence, which was final and irrevocable, without an individual having any chance to mitigate violated their right to dignity- Constitution of Kenya, 2010, article 28

Constitutional Law- fundamental rights and freedoms- right to a fair trial- the right to appeal to, or apply for review by, a higher court as prescribed by law, if convicted- review of sentences of persons convicted under section 204 of the Penal Code that provided for the death sentence- where appeals by persons convicted under section 204 of the Penal Code were limited to conviction only- whether the mandatory nature of the death sentence under section 204 of the Penal Code violated article 50 (2) (q) which provided for the right of a person to appeal to, or apply for review, by a higher Court if convicted- Constitution of Kenya, 2010, article 50 (2) (q)

Constitutional Law- fundamental rights and freedoms- the right to equality and freedom from discrimination- the right to equality and freedom from discrimination of convicts sentenced under section 204 of the Penal Code- whether convicts sentenced pursuant to section 204 were not accorded equal treatment to convicts who were sentenced under other sections of the Penal Code that did not mandate a death sentence-  whether refusing or denying a convict facing the death sentence the right to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was unjustifiable discrimination and unfair- Constitution of Kenya, 2010, article 27

Constitutional Law- interpretation and application of the constitution- validity and consistency of statutes in accordance with the Constitution- the constitutionality of the mandatory nature of the death sentence- whether the mandatory nature of the death penalty provided for under section 204 of the Penal Code was unconstitutional- Constitution of Kenya, 2010, articles 19 (3) (a), 20 (1) & (2), 25 (c), 27, 28, 48 and 50 (1) & (2) (q)

Criminal Procedure- sentencing- death sentence- the mandatory death sentence under section 204 of the Penal Code- provisions of the sentencing policy guidelines with regard to the mandatory death sentence- where section 204 of the Penal Code that provided for the mandatory death sentence for murder was found to be inconsistent with the Constitution and invalid to that extent- whether the sentencing policy guidelines regarding the mandatory death sentence was still applicable - what guidelines would apply with regard to mitigating factors in a re-hearing sentence for the conviction of a murder charge- Sentencing policy guidelines, Paragraphs 6.4, 6.5, 6.6, 6.7 & 6.8

Criminal Procedure- sentencing- death sentence- mitigation where a mandatory death sentence had been imposed- where murder convicts were subjected to the same (mandatory) sentence thereby treating them as an undifferentiated mass- consideration of the differential culpability of different murder convicts when considering whether or not to impose a death sentence

Constitutional Law- validity of laws- constitutionality of the indeterminate life sentence- whether the parties had sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional- whether the court could determine the issue regarding the constitutionality of the indeterminate life sentence where the parties had not canvassed the issue to the Court’s satisfaction- whether the indeterminate life sentence could be declared unconstitutional.

Constitutional Law- validity of laws- constitutionality of the provision of section 46 of the Prisons Act which excluded prisoners serving life sentences from being considered for remission- whether the Court could consider the issue of constitutionality of section 46 of the Prisons Act despite the fact that it had been raised by Amici Curiae and not to the disputes- whether the issue of the constitutionality of section 46 of the Prisons Act had been properly canvassed at the High Court and Court of Appeal- whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission- Prisons Act, section 46.

Jurisdiction- jurisdiction of the Supreme Court- jurisdiction of the Supreme Court to apply and interpret the Constitution- where the issues raised before the Supreme Court had not been canvassed at the High Court and Court of appeal- whether the issue of the constitutionality of section 46 of the Prisons Act had been properly canvassed at the High Court and Court of Appeal-whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission

Jurisdiction- jurisdiction of the Supreme Court- jurisdiction of the Supreme Court to apply and interpret the Constitution- where the issues raised before the Supreme Court had not been canvassed at the High Court and Court of appeal- whether the court could determine the issue regarding the constitutionality of the indeterminate life sentence where the parties had not canvassed the issue to the Court’s satisfaction- whether the indeterminate life sentence could be declared unconstitutional

Constitutional Law- separation of powers - enactment of laws- institutions that have the power to enact laws- provision of a legal framework for the rights and treatment of convicted persons- where there were no specific provisions for the sentence of life imprisonment, which was an indeterminate sentence- whether courts could define what constituted a life sentence or what number of years had to first be served by a prisoner on life sentence before they were considered on parole- whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment

Constitutional Law- fundamental rights and freedoms- enforcement of fundamental rights and freedom- where a law had been declared invalid or inconsistent with the Constitution- where the mandatory death sentence had been declared unconstitutional- whether any remedies would accrue to the Petitioners where the mandatory death sentence was declared unconstitutional.

Brief Facts

The appeal raised a fundamental legal issue that had engaged many global jurisdictions in seemingly unending controversy: whether or not the mandatory death penalty was unconstitutional.

The Petitioners and others had been arraigned before the High Court for the offence of murder. Upon their conviction, they were sentenced to death as decreed by section 204 of the Penal Code. Their appeal to the Court of Appeal against both that conviction and sentence was dismissed. Aggrieved by that decision, they filed two separate appeals in the instant Court which had since been consolidated.

The gravamen of the Petitioners’ appeal was that the mandatory death sentence imposed upon them and the commutation of that sentence by an administrative fiat to life imprisonment was both unconstitutional and therefore null and void. In the circumstances, the Petitioners were entitled to damages the quantum of which the instant Court had to assess.

The Petitioners’ case was that the mandatory nature of the death penalty under section 204 of the Penal Code jettisoned the discretion of the trial forcing it to hand down a sentence pre-determined by the Legislature thus fouling the doctrine of separation of powers. They submitted that the sentencing process was part of the right to a fair trial enshrined in article 50(2) of the Constitution. They contended that the mandatory death penalty under section 204 of the Penal Code violated that right in that it denied the trial Judge discretion in sentencing. The Petitioners further contended that article 50 (2) (q) of the Constitution entitled any person who had undergone a criminal trial to appeal or seek a review from a higher Court. That included a second appeal. However, as section 261 of the Criminal Procedure Code limited second appeals to convictions only, if not set aside by the first appellate court, the mandatory nature of the death sentence would violate the convicts’ rights to a fair hearing under article 50 (2) (q) of the Constitution.

Issues

i.                     Whether the mandatory nature of the death sentence denied a person the right to a fair trial with regard to mitigation.

ii.                   Whether imposing a death sentence, which was final and irrevocable, without an individual having any chance to mitigate violated their right to dignity.

iii.                  Whether the mandatory nature of the death sentence under section 204 of the Penal Code violated article 50 (2) (q) which provided for the right of a person to appeal to, or apply for review, by a higher Court if convicted.

iv.                Whether refusing or denying a convict facing the death sentence the right to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was unjustifiable discrimination and unfair.

v.                  Whether the mandatory nature of the death sentence provided for under section 204 of the Penal Code was unconstitutional.

vi.                Consideration of the differential culpability of different murder convicts when considering whether or not to impose a death sentence.

vii.               Whether the sentencing policy guidelines regarding the mandatory death sentence was still applicable

viii.             What guidelines would apply with regard to mitigating factors in a re-hearing sentence for the conviction of a murder charge?

ix.                 Whether the indeterminate life sentence could be declared unconstitutional.

x.                  Whether the Supreme Court could declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission

xi.                 Whether the Supreme Court could fix a definite number of years of imprisonment, subject to remission rules, which would constitute life imprisonment

xii.               Whether any remedies would accrue to the Petitioners where the mandatory death sentence was declared unconstitutional.

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 19 (3) (a)

19. Rights and fundamental freedoms

(3) The rights and fundamental freedoms in the Bill of Rights—

(a) belong to each individual and are not granted by the State;

Article 20 (1) & (2)

20. Application of Bill of Rights

(1) The Bill of Rights applies to all law and binds all State organs and all persons.

(2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.

Article 25 (c)

25. Fundamental Rights and freedoms that may not be limited

(c) the right to a fair trial

Article 27

27. Equality and freedom from discrimination

(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.

(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).

(6) To give full effect to the realisation of the rights guaranteed under this Article, the State shall take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

(7) Any measure taken under clause (6) shall adequately provide for any benefits to be on the basis of genuine need.

(8) In addition to the measures contemplated in clause (6), the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.

Article 28

28. Human dignity

Every person has inherent dignity and the right to have that dignity respected and protected.

Article 48

48. Access to justice

The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.

Article 50 (1)

50. Fair hearing

(1) 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.

Article 50 (2) (q)

50. Fair hearing

(2) Every accused person has the right to a fair trial, which includes the right—

(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

Penal Code, Cap 63, Laws of Kenya

204. Punishment of murder

Any person convicted of murder shall be sentenced to death.

Held

1.    Constitutional provisions such as articles 19 (3) (a), 20 (1) & (2), 28, 48 and 50 (1) & (2) and provisions of the International Covenant on Civil and Political Rights such as article 14 brought to the fore a number of principles. Those were

a.     Rights and fundamental freedoms belonged to each individual.

b.     The bill of rights applied to all law and bound all persons.

c.     All persons had inherent dignity which had to be respected and protected.

d.      The State had to ensure access to justice to all.

e.     Every person was entitled to a fair hearing

f.        The right to a fair trial was non-derogable. For section 204 of the Penal Code to stand, it had to be in accord with those provisions.

2. The trial process did not stop at convicting the accused. There was no doubt that sentencing was a crucial component of a trial.  It was during sentencing that the court heard submissions that impacted on sentencing. That necessarily meant that the principle of fair trial had to be accorded to the sentencing stage too.
3. Pursuant to sections 216 and 329 of the Criminal Procedure Code, mitigation was a part of the trial process. Therefore, from a reading of those sections, the Court ought to take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence.  Those provisions were couched in permissive terms. However, the Court of Appeal had consistently reiterated on the need for noting down mitigating factors. Not only because they could affect the sentence but also for futuristic endeavours such as when the appeal was placed before another body for clemency.
4. What section 204 of the Penal Code was essentially saying to a convict was that he or she could not be heard on why, in all the circumstances of his or her case, the death sentence should not be imposed on him or her, or that even if he or she was heard, it was only for the purposes of the record as at that time of mitigation because the Court had to impose the death sentence nonetheless, as illustrated by various Court of Appeal decisions.  The Supreme Court could not decipher the possible rationale for that provision. A person facing the death sentence most deserved to be heard in mitigation because of the finality of the sentence.
5. Mitigation was an important congruent element of fair trial. The fact that mitigation was not expressly mentioned as a right in the Constitution did not deprive it of its necessity and essence in the fair trial process. In any case, the rights pertaining to fair trial of an accused pursuant to article 50(2) of the Constitution were not exhaustive.
6.  The right to fair trial was not just a fundamental right. It was one of the inalienable rights enshrined in article 10 of the Universal Declaration of Human Rights, and in the same vein article 25(c) of the Constitution elevated it to a non-derogable right which could not be limited or taken away from a litigant. The right to fair trial was one of the cornerstones of a just and democratic society, without which the rule of law and public faith in the justice system would inevitably collapse.
7. Section 204 of the Penal Code deprived the Court of the use of judicial discretion in a matter of life and death. Such law could only be regarded as harsh, unjust and unfair. The mandatory nature deprived the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listened to mitigating circumstances but had, nonetheless, to impose a set sentence, the sentence imposed failed to conform to the tenets of fair trial that accrued to accused persons under article 25 of the Constitution which was an absolute right. With regard to murder convicts, mitigation was an important facet of fair trial.
8. Article 28 of the Constitution provided that every person had inherent dignity and the right to have that dignity protected. It was for the Court to ensure that all persons enjoyed the right to dignity. Failing to allow a Judge discretion to take into consideration the convicts’ mitigating circumstances, the diverse character of the convicts, and the circumstances of the crime, but instead subjecting them to the same (mandatory) sentence thereby treating them as an undifferentiated mass, violated their right to dignity.
9. The dignity of the person was ignored if the death sentence, which was final and irrevocable, was imposed without the individual having any chance to mitigate. The Supreme Court could not shut its eyes to the distinct possibility of the differing culpability of different murderers. Such differential culpability could be addressed by allowing judicial discretion when considering whether or not to impose a death sentence.  A formal equal penalty for unequally wicked crimes and criminals was not in keeping with the tenets of fair trial.
10. Whilst the Constitution recognized the death penalty as being lawful, it did not provide that when a conviction for murder was recorded, only the death sentence would be imposed. Mitigation had a place in the trial process with regard to convicted persons pursuant to section 204 of the Penal Code. It was during mitigation, after conviction and before sentencing, that the offender's version of events could be heavy with pathos necessitating the Court to consider an aspect that could have been unclear during the trial process calling for pity more than censure or on the converse, impose the death sentence, if mitigation revealed an untold degree of brutality and callousness.
11.  If a Court did not have discretion to take into account mitigating circumstances it was possible to overlook some personal history and the circumstances of the offender which could make the sentence wholly disproportionate to the accused's criminal culpability. Further, imposing the death penalty on all individuals convicted of murder, despite the fact that the crime of murder could be committed with varying degrees of gravity and culpability failed to reflect the exceptional nature of the death penalty as a form of punishment. Consequently, failure to individualise the circumstances of an offence or offender could result in the undesirable effect of 'over-punishing' the convict.
12. A fair trial had many facets, and included mitigation and the right to appeal or apply for review by a higher Court as prescribed by law. Section 204 violated article 50 (2) (q) of the Constitution as convicts under it were denied the right to have their sentence reviewed by a higher Court – their appeal was in essence limited to conviction only. There was no opportunity for a reviewing higher court to consider whether the death sentence was an appropriate punishment in the circumstances of the particular offense or offender.  The right to justice was also fettered.
13. The scope of access to justice as enshrined in article 48 was very wide.  Courts were enjoined to administer justice in accordance with the principles laid down under article 159 of the Constitution.  Thus, with regards to access to justice and fair hearing, the State through the courts, ensured that all persons were able to ventilate their disputes.  Access to justice included the right to a fair trial.  If a trial was unfair, one could not be said to have accessed justice.  In that respect, when a murder convict's sentence could not be reviewed by a higher court he was denied access to justice which could not be justified in light of article 48 of the Constitution.
14.  Any law or procedure which when executed culminated in termination of life, ought to be just, fair and reasonable. As a result, due process was made possible by a procedure which allowed the Court to assess the appropriateness of the death penalty in relation to the circumstances of the offender and the offence. The mandatory nature of that penalty ran counter to constitutional guarantees enshrining respect for the rule of law.
15. Any court dealing with the offence of murder was allowed to exercise judicial discretion by considering any mitigating factors, in sentencing an accused person charged with and found guilty of that offence. To do otherwise would render a trial, with the resulting sentence under section 204 of the Penal Code, unfair thereby conflicting with articles 25 (c), 28, 48 and 50 (1) and (2) (q) of the Constitution.
16. Article 27 of the Constitution provided for equality and freedom from discrimination since every person was equal before the law and had the right to equal protection and equal benefit of the law. Convicts sentenced pursuant to section 204 were not accorded equal treatment to convicts who were sentenced under other sections of the Penal Code that did not mandate a death sentence. Refusing or denying a convict facing the death sentence, to be heard in mitigation when those facing lesser sentences were allowed to be heard in mitigation was clearly unjustifiable discrimination and unfair. That was repugnant to the principle of equality before the law.  Accordingly, section 204 of the Penal Code violated article 27 of the Constitution.
17.  Section 204 of the Penal Code was out of sync with the progressive Bill of Rights enshrined in our Constitution specifically; articles 25 (c), 27, 28, 48 and 50 (1) and (2)(q).  Therefore, that section could not stand, particularly, in light of articles 19 (3) (a) and 20 (1) & (2) of the Constitution. In light of those provisions, the timing of the constitutional challenge to section 204 of the Penal Code was propitious and would succeed.
18. Article 26 (3) of the Constitution permitted the deprivation of life within the confines of the law. The Supreme Court was unconvinced that the wording of that article permitted the mandatory death sentence.  The pronouncement of a death sentence upon conviction was permissible only if there had been a fair trial, which was a non-derogable right.  A fair hearing as enshrined in article 50 (1) of the Constitution had to be read to mean a hearing of both sides. A murder convict whose mitigation circumstances could not be taken into account due to the mandatory nature of the death sentence could not be said to have been accorded a fair hearing.
19. The mandatory nature of the death sentence provided for under section 204 of the Penal Code long predated any international agreements for the protection of human rights.  It was a colonial relic that had no place in Kenya today. Whereas it was the duty of Parliament to make laws, it was the duty of the Court to evaluate, without fear or favour, whether the laws passed by Parliament contravened the Constitution.
20.  Human society was constantly evolving and therefore the law, which all civilized societies had to live under, had to evolve in tandem.  A law that was caught up in a time warp would soon find itself irrelevant and would be swept into the dustbins of history. Section 204 of the Penal Code was inconsistent with the Constitution and invalid to the extent that it provided for the mandatory death sentence for murder. For avoidance of doubt, that decision had not outlawed the death penalty, which was still applicable as a discretionary maximum punishment.
21. In 2016, the Judiciary of Kenya published Sentencing Policy Guidelines which gave an analysis on the mandatory death penalty in paragraphs 6.4, 6.5, 6.6, 6.7 and 6.8. As a consequence of the instant decision, paragraphs 6.4-6.7 of the guidelines were no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors were applicable in a re-hearing sentence for the conviction of a murder charge:

a.                  age of the offender;

b.                  being a first offender;

c.                  whether the offender pleaded guilty;

d.                  character and record of the offender;

e.                  commission of the offence in response to gender-based violence;

f.                     remorsefulness of the offender;

g.                 the possibility of reform and social re-adaptation of the offender;

h.                 Any other factor that the Court considers relevant.

22. The guidelines in no way replaced judicial discretion. They were advisory and not mandatory. They were geared to promoting consistency and transparency in sentencing hearings. They were also aimed at promoting public understanding of the sentencing process. That notwithstanding, paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines stated that where there were guideline judgments, that was, decisions from the superior courts on a sentencing principle, the subordinate courts were bound by it.  It was the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it was the duty of the prosecutor and defense counsel to inform the court of existing guideline judgments on an issue before it.
23. The Petitioners had not sufficiently argued and illustrated the particulars of why the indeterminate life sentence should be declared unconstitutional. A critical issue such as that, where legislation was to be examined was deserving of the reasoned and well-thought arguments of the Petitioners, the Director of Public Prosecution and other Interested Parties or Amicus Curiae and input of the High Court and the Court of Appeal.  That would allow the Supreme Court to benefit from the reasoning of those superior Courts and the parties would not be disadvantaged by the Supreme Court’s holding which would in effect make the instant Court a court of first and last instance. The submissions made had not canvassed the issue to the Court’s satisfaction. Consequently, a determination on it could not be made.
24. Counsel for the Amici Curiae asked the Supreme Court to declare section 46 of the Prisons Act unconstitutional because it excluded prisoners serving life sentences from being considered for remission. The Supreme Court had limited the role and function of amici curiae. Any interested party or amicus curiae that signaled that he or she intended to steer the Court towards a consideration of ‘new issues’ could not be allowed.  Further, such issues were matters relating to the interpretation of the Constitution, and they could not be canvassed in the Supreme Court for the first time, as though it was a Court of first instance. The Supreme Court recognized the hierarchy of the Courts in Kenya, and their competence to resolve those constitutional questions.
25. The Supreme Court could not delve into the issue of the unconstitutionality of section 46 of the Prisons Act because none of the primary parties to the dispute had raised it.  That issue had also not been properly canvassed at the High Court and Court of Appeal. The Supreme Court could not assume jurisdiction and address issues that had not gone through the hierarchy of Courts.
26. The life imprisonment sentence had not been defined under Kenyan law. It was assumed that the life sentence meant the number of years of the prisoner’s natural life, in that it ceased upon his or her death.
27. The provisions on the rights of detained persons as enshrined under article 51 of the Constitution was considered in order to determine whether the Supreme Court can fix a definite number of years. It was clear from those provisions that it was the legislature, and not the Judiciary, that was tasked with providing a legal framework for the rights and treatment of convicted persons.
28. Although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there were no specific provisions for the sentence of life imprisonment, because it was an indeterminate sentence.  Nevertheless, it was not for the court to define what constituted a life sentence or what number of years must first be served by a prisoner on life sentence before they were considered on parole.  That was a function within the realm of the legislature.
29.  In Kenya and internationally, sentencing should not only be used for the purpose of retribution, it was also for the rehabilitation of the prisoner as well as for the protection of civilians who could be harmed by some prisoners.  A life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.
30.  It was recommended that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constituted a life sentence’; that could include a minimum number of years to be served before a prisoner was considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences.  That would be in tandem with the objectives of sentencing. Such proposed legislation would enable Kenya to comply with articles 2(6) of the Constitution which stated that any treaty or convention ratified by Kenya would form part of the law of Kenya.
31. Comparative jurisprudence was persuasive and there was no need to deviate from the already established practice. The facts in the instant case were similar to what had been decided in other jurisdictions.  Remitting the matter back to the High Court for the appropriate sentence seemed to be the practice adopted where the mandatory death penalty had been declared unconstitutional. The appropriate remedy for the Petitioners in the instant case was to remit the matter to the High Court for sentencing.
32.  It was prudent for the same Court that heard the instant matter to consider and evaluate mitigating submissions and evaluated the appropriate sentence befitting the offence committed by the Petitioners. The sentencing re-hearing that was allowed, applied only for the two Petitioners. In the meantime, existing or intending petitioners with similar cases ought not approach the Supreme Court directly but await appropriate guidelines for disposal of the same. The Attorney General was directed to urgently set up a framework to deal with sentence re-hearing of cases relating to the mandatory nature of the death sentence - which was similar to that of the Petitioners in the instant case.

Orders

1. The mandatory nature of the death sentence as provided for under section 204 of the Penal Code was declared unconstitutional.  For the avoidance of doubt, the order did not disturb the validity of the death sentence as contemplated under article 26(3) of the Constitution.
2. The instant matter was remitted to the High Court for re- hearing on sentence only, on a priority basis, and in conformity with the instant judgment.
3. The Attorney General, the Director of Public Prosecutions and other relevant agencies shall prepare a detailed professional review in the context of the instant judgment and order made with a view to setting up a framework to deal with sentence re-hearing cases similar to that of the Petitioners. The Attorney General was granted twelve (12) months from the date of the Judgment to give a progress report to the Court on the same.
4. The judgment be placed before the Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law, to give effect to the judgment on the mandatory nature of the death sentence and the parameters of what ought constitute life imprisonment.

Fresh nomination was not required for the purposes of the Repeat Presidential election held on October 26, 2017

John Harun Mwau and 2 others v Independent Electoral and Boundaries Commission & 4 others [2017] eKLR

Petitions Nos. 2 And 4 Of 2017

(As Consolidated November 14, 2017)

Supreme Court of Kenya

D Maraga, CJ; P Mwilu, DCJ; J B Ojwang, S C Wanjala, S N Ndung’u & I Lenaola, ScJJ

December 11, 2017

Reported By Long’et Terer & Njeri Githang’a

Electoral law – presidential election –repeat presidential election-validity of a presidential election-petition challenging the validity of the president elect after a repeat election-allegations of non-compliance with the Constitution and electoral laws- allegations of various  irregularities and illegalities during the conduct of the elections –what were the principles of free and fair elections -whether the Presidential Election was conducted in accordance with the principles laid down in the Constitution of Kenya, 2010 and the written laws relating to elections- whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election and if in the affirmative, what was their impact, if any, on the integrity of the election- Constitution of Kenya, 2010, articles 81, 86,138

Electoral Law-presidential elections-withdrawal of a presidential candidate-withdrawal before a repeat election-manner in which such withdraw should be made-what was the legal effect of the withdrawal of a Presidential election candidate before election- in determining the legal effect of withdrawal by a candidate before an election, what guidance was to be drawn from the pronouncements of the Supreme Court in Raila 2013- Elections (General) Regulations, 2017 Regulation 52

Electoral law-presidential elections-conduct of presidential elections- constitutional threshold of a free and fair election -whether the election conducted on 26^th October, 2017 met the constitutional threshold of a free and fair election under article 81 of the Constitution-what are the legal consequences of not holding a Presidential election in each constituency under article 138(2) of the Constitution-whether the election held on 26^th October, 2017 and its results, was legitimate and credible, both in fact and in law- Constitution of Kenya, 2010 articles 81and 138(2)

Statutes-amendment of statutes-retrospective application of statutes-what was the effect of the Election Laws (Amendment) Act, 2017 on the conduct of the Presidential election held on October 26, 2017-was section 83 of the Elections Act (as amended) unconstitutional- Elections Act, section 83 (as amended)

Electoral law-presidential election-electoral process-repeat presidential election-nomination of candidates- what was the purpose of nominations in a presidential election-whether there was need to conduct fresh nominations of candidates in preparation for the repeat presidential election -what was the place of the Raila 2013 decision, and the Ekuru Aukot Judgment, in the conduct of the fresh election

Jurisdiction-jurisdiction of the Supreme Court-exclusive original jurisdiction of the Supreme Court-jurisdiction to determine matters pertaining to a presidential election- whether the Supreme Court could determine an issue touching on the constitutionality of any law integral to the determination of a cause before it, although pending before another Court- whether the Court would, notwithstanding the fact that a matter is pending on appeal, proceed to determine the issue-Constitution of Kenya 2010, articles 140(3) & 163(3). 

Legal Precedent-stare decisis -binding (ratio decidendi) and persuasive precedents (obiter dicta)-nature of observations in a judgment which are not an issue raised or pleaded by the parties to the dispute in question-whether the Courts are bound by such observations-extent to which such observations would be of persuasive value-whether the observations in Raila 2013 were of binding authority- whether it was necessary for the Court to make a clarification of the meaning of the said paragraphs, in view of the contradictory interpretations attendant upon them.

Electoral Law-principles of elections-legitimacy and credibility of elections-the meaning and applicability of the term ‘legitimacy’ and ‘credibility’, in the general context of a Presidential election-whether the election conducted on 26^th October, 2017 lacked legitimacy and credibility

Statutes-constitutionality of statutes-constitutionality of section 83 of the Elections Act as amended- where the section had two limbs - compliance with the law on elections, and irregularities that may affect the result of the election- where the amendment made the two limbs in the provision disjunctive-whether the section as amended was unconstitutional-Elections Act, section 83

Brief Facts

On August 8, 2017 Kenya held its second general election under the Constitution of Kenya, 2010 and the Hon. Uhuru Muigai Kenyatta, the 3^rd Respondent, was declared the winner of the Presidential election. The Hon. Raila Amolo Odinga and the Hon. Stephen Kalonzo Musyoka, who had contested as Presidential and Deputy-Presidential candidates respectively, challenged the election, in Raila Amolo Odinga & Another v. The Independent Electoral and Boundaries Commission & 2 Others, Presidential Election Petition No. 1 of 2017, (Raila 2017). In a decision rendered on September 1, 2017, with reasons reserved and delivered on September 20, 2017, the Supreme Court, by a majority of four-to-two, nullified that election and, pursuant to article 140(3) of the Constitution, directed the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh Presidential election within 60 days.

Through a Gazette notice dated September 5, 2017, the IEBC and its Chairman directed that only Jubilee Party and Orange Democratic Movement would participate in the fresh presidential elections. Ekuru Aukot, a presidential candidate for Thirdway Alliance Party in the August 8, 2017 general elections filed a petition in the High Court stating that under articles 27, 38, and 140(3) of the Constitution, as a candidate who participated in the August 8, 2017 elections, he had a right to participate in the fresh presidential elections slated for October 26, 2017. The High Court in the Judgment in Ekuru Aukot directed the inclusion of Dr. Aukot as an additional Presidential candidate. Following the decision, the IEBC through a Gazette Notice included all the presidential candidates who had participated in the August 8, election.

In the meantime, a day before the Judgment in Ekuru Aukot was delivered, The Hon. Raila Amolo Odinga and the Hon. Stephen Kalonzo Musyoka, who were contesting as Presidential and Deputy-Presidential candidates respectively, withdrew from the elections and urged their supporters to boycott the election.  The IEBC conducted a fresh Presidential election on October 26, 2017 with all the eight Presidential Candidates on the ballot. However, elections in 25 Constituencies were postponed due to serious breaches of the peace in those constituencies. Even on the specially-designated Election Day, elections could not be held in the said areas, due to violence; and the 1^st Respondent called off the repeat elections. Consequently, on October 30, 2017 upon the tallying and verification of results being complete the Chairperson of IEBC declared the 3^rd Respondent as the winner, having garnered 7,483,895 out of the 7,616,217 valid votes cast despite the electorate in the 25 Constituencies not having voted.

Two petitions were filed challenging that election: Petition No. 2 of 2017 by Mr. John Harun Mwau (hereinafter, 1^st Petitioner) and Petition No. 4 of 2017 by Mr. Njonjo Mue together with Mr. Khelef Khalifa (hereinafter, 2^nd and 3^rd Petitioners). Those two petitions were consolidated, with petition 2 of 2017 being the lead file.

Petition No. 2 of 2017 was based mainly on one legal issue: that the 1^st and 2^nd Respondents failed to conduct fresh nominations for the election of 26^th October, 2017, thus rendering the election null and void. Petition No. 4 of 2017 on the other hand raised the following grounds:

(i)                 The 2^nd Respondent did not conduct any nominations of presidential candidates in accordance with the Constitution and the Law: the 3^rd Respondent was [thus] not validly, procedurally and/or lawfully nominated as a presidential candidate.

(ii)               The election conducted by the 1^st and 2^nd Respondents on October 26, 2017 failed to meet the general principles stipulated under article 81(d) of the Constitution of Kenya: of universal suffrage based on the aspiration for fair representation and equality of vote. And it failed to meet the general principles stipulated under Article 81(e) of the Constitution of Kenya of a free and fair election, which were;

(a)             The election was not free from violence, intimidation, improper influence or corruption;

(b)             The fresh election was not conducted by an independent body;

(c)             The fresh election was not transparent; and

(d)             The fresh election was not administered in an impartial, neutral, efficient, accurate and accountable manner. 

(iv)      The fresh election was further marred by illegalities and irregularities; and

(v)       Given the prevailing conditions and circumstances, the 1^st and 2^nd Respondents could not and should not have proceeded with the conduct of the fresh election on 26^th October, 2017.

On the basis of the foregoing averments and allegations, the Petitioners sought various reliefs including the declaration that the election of the President-elect in the fresh Presidential election held on October 26, 2017 pursuant to article 140 (3) of the Constitution was invalid.

Before the October 26 elections, Parliament passed the Election Laws (Amendment) Act 2017 on October 12, 2017 and submitted to the President for assent on October 13, 2017. The President having not assented to the subject Bill by 27^th October, 2017 (the 14^th day), by operation of law (Article 115(6) of the Constitution) it was deemed assented to on that date. It was then published in the Gazette on 2^nd November, 2017.

Issues

(i)                 What was the locus standi of the Petitioners? Were their causes being pursued in the public interest?

(ii)               Whether the Presidential election was conducted in conformity with the Constitution and the applicable laws.

a.     Whether the election met the constitutional threshold of a free and fair election under article 81 of the Constitution?

b.     Was the Presidential election held on October 26, 2017 marred with illegalities and irregularities? if so, what were their effects on the validity of the election?

(iii)              What was the legal effect of the withdrawal of a Presidential election candidate before a repeat election?

(iv)            In determining the legal effect of withdrawal by a candidate before an election, what guidance was to be drawn from the pronouncements of the Supreme Court in Raila 2013?

a.     Whether the pronouncement on withdrawal of a presidential candidate in the Raila 2013, were of binding authority.

b.     Whether the Court could, notwithstanding the fact that the matter was pending on appeal, proceed to determine the issue.

c.     Whether it was necessary for the Court to make a clarification of the meaning of the said paragraphs, in view of the contradictory interpretations attendant upon them.

(v)              What were the legal consequences of not holding a Presidential election in each constituency under article 138(2) of the Constitution?

(vi)            What was the effect of the Election Laws (Amendment) Act, 2017 on the conduct of the Presidential election held on October 26, 2017?

(vii)           Was section 83 of the Elections Act (as amended) unconstitutional?

(viii)         Whether fresh nominations ought to have been conducted following the annulment of the presidential election held on August 8, 2017 and before holding the repeat elections.

a.     What was the purpose of nominations in a Presidential election?

b.     What was the place of the Raila 2013 decision, and the Ekuru Aukot Judgment, in the conduct of the fresh election?

(ix)             What is the meaning and applicability of the term ‘legitimacy’ and ‘credibility’, in the general context of a Presidential election?

(x)              Whether the Supreme Court could determine an issue touching on the constitutionality of any law integral to the determination of a cause before it, although pending before another Court.

Relevant Provisions of the Law

Elections Act, Section 14

Section 14 provides the manner in which a Presidential election is initiated, in the following terms:

“(1)    Whenever a presidential election is to be held, the Commission shall publish a notice of the holding of the election in the Gazette and in electronic and print media of national circulation—

 (a) in the case of a general election, at least sixty days before the date of the election; or

(b) in the case of an election under Article 138(5) of the Constitution, at least twenty-one days before the date of the election;

(c)  in any other case, upon the office of the President becoming vacant.

“(2)     The notice referred to in subsection (1) shall be in the prescribed form and shall specify—

(a) the nomination day for the presidential election;    and

(b) the day or days on which the poll shall be taken for the presidential election, which shall not be less than twenty-one days after the day specified for nomination.”

Rule 8 of the Supreme Court (Presidential Election Petition) Rules, 2017 as follows:

                              (i)          the validity of the conduct of a presidential election;

                            (ii)          the validity of the qualification of a President-elect;

                          (iii)          the commission of an election offence as provided under the Election Offences Act (No. 37 of 2016);

                          (iv)          the validity of the nomination of a Presidential candidate or

                            (v)          any other ground that the Court deems sufficient, provided such ground shall not be frivolous, vexatious or scandalous.

Regulation 52 of the Elections (General) Regulations, 2017 which provides that:

“(1)    A candidate who has been nominated may withdraw his or her candidature by delivering to the respective returning officer a notice to that effect in Form 24A not later than three days after nomination.

“(2)   Where there are only two nominated candidates and one candidate withdraws, the remaining candidate shall be declared duly elected in accordance with regulation 53.”

Constitution of Kenya 2010

Article 38

The right to vote is enshrined in article 38 of the Constitution, which provides that:

“(1)…

“(2) …

“(3) Every adult citizen has the right, without unreasonable restrictions??

a)  to be registered as a voter;

b) to vote by secret ballot in any election or referendum; and,

c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office” 

Article 83 of the Constitution

Article 83 of the Constitution which outlines the prerequisites of voter registration, in the following terms:

“(1) A person qualifies for registration as a voter at elections or referenda if the person –

 (a) is an adult citizen;

(b) is not declared to be of unsound mind; and

(c) has not been convicted of an election offence during the preceding five years.

“(2) A citizen who qualifies for registration as a voter shall be registered at only one registration centre.

“(3) Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.”

“ Audit of the register of votes

“(1) The Commission may, at least six months before a general election, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose    of –

(a) verifying the accuracy of the Register;

(b) recommending mechanisms of enhancing the  accuracy of the Register; and

(c) updating the register.

“(2) ….

“(3) For purposes of the first general election after the commencement of this section, the Commission shall, within thirty days of the commencement of section, engage a professional reputable firm to conduct an audit of the Register of Voters for the purpose of –

(a) verifying the accuracy of the Register;

(b) recommending mechanisms of enhancing the accuracy of the Register; and

(c)       updating the register.

“(4) The firm engaged under subsection (3) shall conduct the audit and report to the Commission within a period of thirty days from the date of engagement.

“(5) The Commission shall, within fourteen days of receipt of the report under subsection (4), submit the report to the National Assembly and the Senate.

“(6) The Commission shall implement the recommendations of the audit report within a period of thirty days of receipt of the report and submit its report to the National Assembly and the Senate”

Elections Act, 2011

Section 3:

“(1) An adult citizen shall exercise the right to vote specified in Article 38(3) of the Constitution in accordance with this Act.

 “(2) A citizen shall exercise the right to vote if the citizen is registered in the Register of Voters.”

Section 8

“(1) The Commission shall maintain an updated Register of Voters.

“(2) For purposes of maintaining an updated register of voters, the Commission shall?

(a) regularly revise the Register of Voters;

(b) update the Register of Voters by deleting the names of deceased voters and rectifying the particulars therein;

(c) conduct a fresh voter registration, if necessary, at intervals of not less than eight years, and not more than twelve years, immediately after the Commission reviews the names and boundaries of the constituencies in accordance with Article 89(2) of the Constitution;

d) review the number, names and boundaries of wards whenever a review of the names and boundaries of counties necessitates a review; and

(e) revise the Register of Voters whenever county boundaries are altered in accordance with Article 94(3) of the Constitution.”

Section 55B

“(1) The Commission may, where a date has been appointed for holding an election, postpone the election in a constituency, county or ward for such period as it may consider necessary where??

(a)       there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date;

(b)       it is impossible to conduct the elections as a result of a natural disaster or other emergencies,

(c) that there has been occurrence of an electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed.

 “(2) Where an election is postponed under subsection (1), the election shall be held at the earliest practicable time.

“(3) Notwithstanding the provisions of this section, the Commission may, if satisfied that the result of the elections will not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made”

Elections Act Section 83 (as amended) provides:

83. (1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that –

(a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and

(b) the non-compliance did not substantially affect the result of the election.

(2) Pursuant to section 12 of the Interpretation and General Provisions Act, a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.

Elections (General) Regulations, 2012

Regulation 87 of the Elections (General) Regulations, 2012 in the following terms:

“(3) Upon receipt of Form 34A from the constituency returning officers under sub-regulation (1), the Chairperson of the Commission shall??

(a) verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre;

(b) tally and complete Form 34C;

(c) announce the results for each of the presidential candidates for each County;

(d) sign and date the forms and make available a copy to any candidate or the national chief agent present;

(e) publicly declare the results of the election of the president in a accordance with Articles 138(4) and 138(10) of the Constitution;

(f) issue a certificate to the person elected president in Form 34D set out in the Schedule; and

(g) deliver a written notification of the results to the Chief Justice and the incumbent president within seven days of the declaration;

 Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner on the basis of Article 138(4)(a) (b) of the Constitution…”

Case law

Raila Amolo Odinga 2013

The operative paragraphs are 289- 290 where the Court thus stated:

“289. It is clear that a fresh election under Article 140(3) is triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election.  Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election. In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.

“290. Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138(8) (b) would become applicable, with fresh nominations ensuing.”

Republic v. Independent Electoral and Boundaries Commission Ex Parte Khelef Khalifa & Another, Judicial Review Misc. Application No. 628 of 2017 (formerly Mombasa JR 58 of 2017 [2017] eKLR), and  the Court held [paragraph 114] that:

114 “Having considered the issues raised herein and pursuant to Section 11 of the Fair Administrative Action Act, 2015, these are my findings:

(1) The Respondent was under a constitutional and statutory obligation pursuant to Regulation 3(2) of the Elections (General) Regulations, 2012 to provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.

(2)  The Respondent did not provide the list of persons proposed for appointment to political parties and independent candidates at least fourteen days prior to the proposed date of appointment to enable them make any representations.

(3)   In so doing the Respondent violated Regulation 3(2) of the said Regulations as read with Articles 38 and 81 of the Constitution.

(4)  Since there is no prayer seeking either the cancellation of the fresh elections due for 26th October, 2017 or their postponement, it would not be efficacious to grant the orders herein in the manner sought.

115. Therefore without sanitizing the said process, I decline to issue the reliefs sought herein in the exercise of my discretion not based on lack of merit, but on public interest.”

Held

1.      The Court’s jurisdiction to hear and determine a Presidential election petition was provided for under article 140 (1) of the Constitution, which provided that “A person may file a petition in the supreme Court to challenge the election of the president-elect ….” Article 260 of the Constitution defined a person to include a “company, association or other body of persons whether incorporated or unincorporated.” Guided by the terms of articles 140 and 260, “a person” under article 140 of the Constitution, included both a natural and a juristic person. There was no requirement for participation in an election, under article 140. The 3^rd Respondent did not, effectively affirm his submission to the effect that article 140 (1) bestowed locus standi only upon persons who had exercised their rights to vote under article 38. Therefore, the Petitioners had the legal standing under article 140 (1), to file the Petition.

2.      The subject-matter of the petitions before the Court met the criteria to be characterized as being in the category of public-interest litigation. Public-interest litigation is a public right, enshrined in articles 22 (1) (c) and 258 (2) (c) of the Constitution. It is a veritable vehicle for the vindication of public rights, such as extend beyond the constraints of the common law doctrine of locus standi.

3.      The general guiding principle in public interest litigation should always be that, the suit must be brought in the broad public interest.  It should not be a veil for private, commercial, partisan or other non-public interests. The detailed contours of the applicable law will continue to unfold, through the works of the superior Courts. The proliferation of issues raised in the matter were symbolic of parties aggrieved, and were presenting a real cause for judicial resolution. 

4.      The nomination process was deeply rooted in the Constitution, which recognized that an electoral contest must be preceded by the nomination of candidates to vie for elective positions. Article 137 specified the qualifications and disqualifications of a Presidential candidate.

5.      Article 138(8)(a) also underscored the centrality of nomination, by decreeing that a Presidential election should be cancelled if no person had been nominated as a candidate before the expiry of the period set for the delivery of nomination papers.  Nominations, therefore, was not just a formality, or an exercise in futility, nor could it be dispensed with, save for lawful cause.  Besides, not everyone qualified to be nominated as a contestant, as that could be deduced from the phraseology of article 137(1) and 137(2) of the Constitution, which respectively, thus signaled: a person qualifies for nomination…”; and ‘a person is not qualified for nomination…’. The Constitution thus provided the yardstick within which the nomination exercise was to be conducted, and it was only where a person met the threshold set under article 137, that such a person would have been duly nominated. Article 138 went further to signal the process set in motion, upon the conclusion of a nomination exercise.

6.      Nomination is a process through which candidates are identified for participation in an election, subject to them being properly qualified under the law, for the elective seat that they seek. It is a critical component of an electoral process, without which there would be no election.

7.      The Constitution of Kenya, 2010 contemplated various instances in which a Presidential election could be held as follows:

                   (i)          at a General Election pursuant to article 136(2)(a) of the Constitution;

                 (ii)          whenever a vacancy occurs in the office of the President, as provided for under article 146 of the Constitution;

                (iii)          an election conducted pursuant to article 138(5) of the Constitution, where no Presidential candidate attains the constitutional threshold necessary before being declared elected to have been elected;

              (iv)          where a President-elect dies before assuming office as provided for under Article 139 of the Constitution;

                (v)          Where the Supreme Court determines the election of the President-elect to be invalid, pursuant to article 140(3) of the Constitution.

All such elections were unique, and took place under different circumstances. As such, it is essential that they be appraised separately, and perceived in their distinctive contexts.

8.      Though the use of the phrase ‘whenever a presidential election is to be held’ under section 14 of the Elections Act signaled a wide scope of application, the substantive provision, nonetheless, confined the application of section 14 to just three kinds of Presidential election, these being: a general election; an election conducted under article 138(5); and, whenever a vacancy occurs. In all those instances, the nomination process was identified as an imperative step, before the conduct of any such election. The only Presidential election not specifically mentioned therein, is a fresh election conducted pursuant to article 140(3) of the Constitution. The failure to recognize the need for nomination in an election under article 140(3), was not out of oversight, or inattention, on the part of the drafters of the Constitution, but arose from a proper appreciation of the law.

9.      Though section 14 of the Elections Act required nominations to be conducted for an election under article 138(5), the Constitution itself restricted the candidates who may participate in such an election, to only the candidate, or candidates with the greatest number of votes, and the candidate, or candidates, with the second greatest number of votes. Consequently, nominations would be pointless, as the Constitution itself established with specificity who the participating candidates should be.

10. An election held under article 138(5) of the Constitution was not a stand-alone election, but rather, one anchored on an ‘initial’ election that had been conducted and where no candidate met the constitutional threshold, for being declared elected. Similarly, a fresh election conducted pursuant to article 140(3) was anchored upon the nullification of a Presidential election, which could have been part of a general election; an election upon a vacancy occurring in the office of the President; or an election held under article 138(5) of the Constitution. It was therefore not a stand-alone election, devoid of a historical foundation.

11. The election held on October 26, 2017 was the outlaw of the nullification of the Presidential election held on August 8, 2017. The election of August 8, 2017 was itself a General Election, which is held every second Tuesday in August of every fifth year. It was also the second national election held under the Constitution of Kenya, 2010. An objective appreciation of the fresh Presidential election held on October 26, 2017 could only be achieved if it was seen in context, rather than in isolation from the General Election of August 8, 2017 and the processes leading to that earlier election.

12. Article 140 conferred upon the Supreme Court jurisdiction to determine the validity of a Presidential election, upon a contest hinged on any of the grounds provided for under Rule 8 of the Supreme Court (Presidential Election Petition) Rules, 2017. The election petition in Raila 2017 revolved around the question of results transmission, irregularities, and illegalities touching on the conduct of the election held on August 8, 2017. Upon making that finding, the Court directed the IEBC to conduct a fresh election in strict conformity with the Constitution and the applicable election laws.  The nomination exercise that had taken place prior to the election, was not the subject of any contest, and so it remained valid¾and therefore, was a proper basis for the conduct of the fresh Presidential election of October 26, 2017.  It emerged from that analysis that, a fresh election under article 140(3) was not a disjointed phenomenon, but one lodged within the motions of the previous electoral contest.

13. The fresh election held on October 26, 2017 only happened because the August 8, 2017 election, in view of the Raila 2017 decision, did not culminate in its logical conclusion, that of determining who the winner was. The purpose of the  October 26, 2017 election, therefore, was to conclude a 5-year electoral cycle, which would have ordinarily ended on  August 8, 2017, and to initiate another electoral cycle of 5 years, ending on the second Tuesday in August, of the next fifth year.  From that timing scenario, it would not, be logical that a person who was not a Presidential candidate for the election held on  August 8, 2017 be a contestant in a repeat election, and subject candidates to a fresh nomination¾when the issue arose neither in the petition challenging that election, nor in the final Orders of the Court. The above position may be perceived alongside the possible scenario of an election held pursuant to article 139 (in case of death of a President-elect, before assuming office), or one under article 146 (where a vacancy arises in the office of the President, and the Deputy-President’s office is vacant, or the Deputy-President is unable to assume office). In those two scenarios, a nomination process was but a logical contemplation, of the law, as there would be no other way of identifying a candidate.

14. In the appraisal of the law relating to the nomination of candidates for Presidential election, the purposive standpoint, predicated on the Constitution’s intent of assuring unbroken governance process was preffered.  The nominations for Presidential-election candidates which took place on May 28 & 29, 2017, remained valid and no other nomination was required for the purposes of the fresh Presidential election held on October 26, 2017. All the Presidential candidates in the election held on October 26, 2017, were validly nominated, and it was proper for the 2^nd Respondent to include them in the ballot papers as Presidential candidates.

15. There was no fault in the IEBC decision to include Mr. Jirongo in the ballot because the initial decision to exclude him was based on the fact that the High Court had on October 4, 2017, in H.C. Insolvency Cause No.3 of 2017, adjudged him to be bankrupt, thus automatically disqualifying him, by dint of article 137 of the Constitution as read with article 99 thereof, from being a Presidential candidate. However, although the said decision should have settled the matter, on October 23, 2017, the High Court stayed the Bankruptcy Order. By virtue of that stay Order, Mr. Jirongo became effectively qualified to contest in a Presidential election, and hence the IEBC decision to include him on the ballot, through Gazette Notice No. 10562 Vol. CXIX No. 160.

16. The 1^st Respondent urged that it fully relied on the Raila 2013 decision, in deciding to have only two Presidential candidates in the fresh election, being the successful Petitioner and the President-elect in the invalidated election. It was clear that the decision in Raila 2013 had limited the number of candidates who would participate in a fresh Presidential election, in the context in which the issue was raised in that petition.

17. While the High Court in the Judgment in Ekuru Aukot had directed the inclusion of Dr. Aukot as an additional Presidential candidate, but without mentioning the status of the other potential candidates, the Court’s reasoning in paragraph 73 had contemplated the availability of an opportunity for every other person who had been a Presidential candidate in the elections of August 8, 2017, to participate in the fresh election.

18. There was no fault with the 1^st and 2^nd Respondents’ decision not to conduct fresh nominations and the inclusion of all the August 8, 2017 candidates on the ballot paper; it was a decision fully in keeping with Raila 2013, and later, the Ekuru Aukot decision: that position was binding on them at the time. 

19. In making some of the pronouncements it made in Raila 2013, the Supreme Court was responding to hypothetical questions that had been expressed before it by the Attorney- General, in his capacity as amicus curiae. The questions were not essential for the determination of the two petitions before the Court; and the answers to them could not, therefore, constitute the ratio decidendi of Raila 2013. To that extent, therefore, the pronouncements in those and other related paragraphs, were orbiter dicta, and thus, not binding on other Courts. The High Court in Ekuru Aukot, was not, therefore, to be faulted for having characterized the said statements as such.

20. The matter before the Supreme Court was no ordinary matter, resolution to which could await the appellate process. The petitions before the Court could stand or fall, on the basis of how the Supreme Court would determine the twin issues of withdrawal of candidature, and nominations.  As the Supreme Court, in the instance, was exercising its original and exclusive jurisdiction under article 140 of the Constitution, an abnegation of its task was not tenable; and the responsibility devolved to it to resolve the relevant questions, without reservation.  The Court’s task was to determine the Presidential election petition.

21. Having declared paragraphs 286-290 of the Raila 2013 decision obiter dicta, there would be no need to clarify their meaning, since they were of no binding effect. They were of no precedential value.  However, though obiter, those pronouncements held special stature, emanating as they did from the apex Court.

22. It was proper, in the circumstances, to consider the content of paragraphs 289 and 290 of the Raila 2013 decision, as the suppositions had a live face before the Court.  Paragraph 289 thus read: “It was clear that a fresh election under article 140 (3) was triggered by the invalidation of the election of the declared President-elect, by the Supreme Court, following a successful petition against such election. Since such a fresh election is built on the foundations of the invalidated election, it can, in our opinion, only involve candidates who participated in the original election.” the foregoing statement represented the correct legal position. But the paragraph also read: “In that case, there will be no basis for a fresh nomination of candidates for the resultant electoral contest.” The foregoing statement was only correct to the extent that it referred to the nullification of an election of the President-elect, where the issue of “nomination of candidates” was not the basis for the nullification of the election. In the petitions before the Court, the nomination of candidates was not the basis for the nullification of the election of August 8, 2017. But if an election was nullified on the basis of flawed nominations, it was clear that the ensuing fresh election could not be conducted on the basis of the same flawed nominations. Fresh nominations would, in the circumstances, have to be conducted.

23. Paragraph 290 of the Raila 2013 decision, which appeared more conjectural in its cast, read:

“Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (8) (b) would become applicable, with fresh nominations ensuing.” Had the foregoing pronouncement not been made obiter; had it been a ratio, it would have been made per incuriam, since article 138 (8) (b) of the Constitution only contemplated three scenarios of a cancellation of an election, namely:

a)    where no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations;

b)    where a candidate for election as President, or Deputy-President, dies on or before the scheduled election date; or

c)    a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President.

Withdrawal of a candidate from the electoral contest was clearly not one of the scenarios contemplated by the Constitution, as a basis for the cancellation of an election. In the circumstances, the Court had to depart from the decision in question.

24. Neither the Constitution nor the Elections Act made provision for the withdrawal of a candidate from an election. The procedure for withdrawal of candidature was instead provided for under Regulation 52 of the Elections (General) Regulations, 2017.  A Presidential candidate who intended to withdraw could only do so within three days of the nominations by filling Form 24A, and submitting the same to the Returning Officer, the 2^nd Respondent. Regulation 52 provided for withdrawal of a candidate within three days of the nominations. The said Regulation was, thus, not applicable to the situation herein. The nominations had long been conducted before the scheduled fresh election. That however did not mean that after the expiry of the three-day period, no candidate could withdraw from an election. One could not be forced to participate in an election, in which he or she had lost interest. The NASA candidate not only made a public announcement of his decision to withdraw from the elections, but addressed a formal letter to that effect, to the 1^st Respondent. Such actions, constituted a substantive and legally-effective withdrawal from the elections.

25. The withdrawal of the NASA Presidential candidate from the October 26, 2017 fresh Presidential election could not, in law, have occasioned the cancellation of the elections. The retention of the name of the withdrawn candidate on the ballot could not vitiate the election  given that a candidate had the liberty to withdraw from the electoral contest even one or two days before the elections, when it would be quite impossible to remove his or her name from the ballot.

26. Article 38 of the Constitution carried various dimensions of political rights. For purposes of the issue at hand, the relevant parts of the article were Clauses (2) and (3) the right to free, fair and regular elections based on universal suffrage and the right to vote by secret ballot. As to who should guarantee the right to vote, article 21(1) of the Constitution required the State and State Organs to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights. The Constitution and statute law charged the IEBC, a State Organ established under article 88 of the Constitution, with the responsibility of safeguarding and guaranteeing the enjoyment of the political rights of the Kenyan people.

27. It was not left to the State and State organs to guarantee the right to vote. The obligation equally bound the voters themselves. On the basis of the evidence adduced, the violent demonstrations, actively orchestrated by certain political actors, prevented the conduct of the fresh Presidential election, threatened the lives of election officials, voters, electoral infrastructure and private property in certain parts of the country. Neither the State nor IEBC or any other State Organ failed to fulfil its duty to respect and guarantee the right to vote. To the contrary, the evidence adduced indicated that the State (particularly the Police and the Ministry of Interior and Co-ordination of National Government) took preventative action to safeguard the safety of election officials, voters, election material and infrastructure. It was also evident that there was also active correspondence between the security agencies and the 1^st Respondent, on securing the country for the conduct of the fresh Presidential election. The police, furthermore, made arrests, and charged suspects of various crimes during the demonstrations.

28. Neither the State nor the IEBC bore responsibility for failure of voting in certain regions of the country. Such failure ought to be attributed to unidentified private citizens and political actors, who actively caused the offending situations, directly or indirectly.  The validity of the fresh election, however, could not be successfully challenged on that ground alone.

29. While the 3^rd Respondent had on various occasions expressed his dissatisfaction with the Judgment delivered by the Supreme Court on September 1, 2017, there was no evidence of any Judge of the Supreme Court being intimidated by the choice of words by the 3^rd Respondent, or of any voter being discouraged from voting on that account.  It was not enough to reproduce the 3^rd Respondent’s political statements, attribute an effect-upon- Judges to them, and invoke the scenario of unidentified voters, then reach the conclusion that such statements had an intimidating effect. As stated in both the Raila 2013 and 2017 decisions, the burden of proof, at all times, lies on a petitioner and generalized claims, without evidence that met clear threshold, were of no value. 

30. The actions by the Cabinet Secretary to bar anti-IEBC demonstrations from the Central Business Districts (CBDs) of Nairobi, Mombasa and Kisumu could not have had any bearing on the validity of the Presidential election. The 2^nd and 3^rd Petitioners had not shown the nexus, if any, between the actions of the Cabinet Secretary and the low voter-turnout.

31. The allegation that the State, headed by the 3^rd Respondent, withdrew police security personnel attached to the NASA Presidential candidate, his running mate and other principals in that coalition, thus rendering his participation in campaigns in the Presidential election risky, leading to his withdrawal from the election altogether had also not been proved. Neither the Hon. Raila Odinga, nor his running mate, had sworn any affidavit to confirm the allegation, and even if it were true, there was no evidence that it had any impact on the Presidential election.

32. The role of Cabinet Secretaries was the subject of regulation under section 23 of the Leadership and Integrity Act, and, even if the 2^nd and 3^rd Petitioners had sufficient evidence, the alleged actions of the named Cabinet Secretaries could not be challenged without first examining the governing law¾ a matter which was not brought before the Court. The complaint in that regard was without merit.

33. The High Court had given a clear determination on the issue of the Government advertising its achievements, and forbade the Government (not the 3^rd Respondent in any capacity) from advertising its achievements using State resources during campaign time. The decision was delivered on October 19, 2017 just a week before the repeat Presidential election was held on October 26, 2017, and it specifically related to events and actions prior to the election of August 8, 2017. The 2^nd and 3^rd Petitioners did not indicate whether the 3^rd Respondent was in violation of the High Court Orders prior to the October 26, 2017 election, or was specifically held liable for any advertisements by the Government prior to August 8, 2017.  They had also not indicated any specific instances where the Government, through the print and electronic media, advertised its achievements, during the campaign period for the election held on October 26, 2017. There was insufficient evidence placed before the Court on whether the 3^rd Respondent had, in any way, used government advertisements during the 60 days leading up to the election, as a campaign tool.

34. The contention that the fresh election was not conducted by an independent and competent body in effect, argued against the very concept of legality under the constitutional process, thus negating the essential democratic values of constitutionalism and legal process. Such a stand was negative, retrogressive, and invited disapproval by the Court. Accordingly the contention in question was devoid of merit.

35. Violence in any form, by any person or agency (private or State), against any person, community, institution or establishment, constitutes a travesty of justice and of the rule of law. Violence undermines the democratic process and makes a mockery of the pacific resolution of disputes which is one of the hallmarks of the progressive Constitution. Unchecked and unbridled episodes of violence are a sure recipe for the disintegration of a nation, and the destruction of the constitutional order.  The Court stands not for lending legitimacy to any acts of violence, as a device for settling disagreements.

36. Were any State agencies, such as the police who were allowed to resort to a limited measure of force to prevent crime, protect lives and property, and quell violent insurrection, to deploy excessive force resulting in injury, destruction of property or death, they certainly would be undermining the authority of the Constitution. By the same token, where civilians, for whatever reason, resort to acts of violence and intimidation, with the object of preventing others from exercising their democratic right to vote, or impeding election officials from executing their constitutional responsibilities, such civilians would engage themselves in the atavistic path of undermining the authority of the Constitution. Article 3(1) of that vital charter categorically declared that every person had an obligation to respect, uphold and defend the Constitution.

37. The terms of article 81(e) (ii) of the Constitution, read in proper context, had to be understood to mean that no person, candidate, political party, party agent or supporter, or State agency was to resort to acts of violence, intimidation, improper influence or corruption, to defeat the will of the people  exercising their democratic rights to vote.  The said provision could not be read as sanctioning or lending legitimacy to acts of violence and intimidation, to achieve the invalidation of an election. If it was to be held otherwise, the authority of the Constitution would be surrendered to cynical acts of violence: all that one would need to do, is to instigate violence in any corner of the Republic during a Presidential election, and thereafter petition the Court to nullify the election. Those who intentionally instigate and perpetrate violence must not plead the same violence as a ground for nullifying an election.

38. The Presidential election could not be held in certain constituencies because of the threat of insecurity caused by violent demonstrations. In that regard, the IEBC invoked section 55B of the Elections Act, postponing the conduct of the repeat election to October 28, 2017.The IEBC was empowered by the Elections Act to postpone an election in a Constituency, County or Ward, in circumstances specified by the Act. However, there was a non-obstante [a ‘none-the-less’ qualification] proviso to that provision; the Commission may, if satisfied that the result of the elections would not be affected by voting in the area in respect of which substituted dates have been appointed, direct that a return of the elections be made.

39. Inherent in the foregoing section 55B of the Elections Act statutory provisions were certain vital points: 

(a)             the Commission was a constitutional body established under article 88 of the Constitution to conduct elections. In particular, article 88(5) mandated the Commission to “exercise its powers and perform its functions in accordance with the Constitution and national legislation;

   (b)      Article 82(1)(d) of the Constitution empowered Parliament to enact

          legislation to provide for the conduct of elections;

                             (i)            the long title to the Elections Act describes it as “an Act of Parliament to provide for the conduct of elections to the office of the President, National Assembly, Senate, County Governor and County Assembly…..”;

                              (ii)         Section 55B of the Elections Act conferred upon the Commission discretion to consider the circumstances necessitating postponement of an election in an electoral unit, such as: the likelihood that a serious breach of the peace was likely to occur if the election was held on that date.  There was a low threshold placed upon the Commission, in exercising its discretion to postpone an election for one reason or the other. Mere apprehension of breach of the peace may trigger the exercise of that power. In the instant case, there was actual, not imagined, threat of violence in the affected areas. Therefore, the Commission’s actions were not outside the contemplation of that provision;

                                   (iii)   it followed, that Section 55B of the Elections Act was a normative constitutional derivative, annexed to article 82 of the Constitution:  to aid the conduct of elections, in line with the principles of the electoral system, and the prerequisites of voting pursuant to articles 81 and 86 of the Constitution, and the right to vote.

Section 55B bore a non obstante clause that allowing the Commission to direct that a return of the election be made, if satisfied that the result of the election will not be affected by voting in the area in which voting remains outstanding. In terms of a Presidential election, that discretion was extended by Regulation 87 of the Elections (General) Regulations, 2012.

40. The Commission made its declaration despite the electorate in the 25 Constituencies not having voted pursuant to article 138 of the Constitution, section 55B of the Elections Act, 2011 and Regulation 87 of the Elections (General) Regulations, 2012. On that basis, even though voters in 25 constituencies had not voted, the declaration of results by the Commission was in perfect accord with the terms of the Constitution.

41. The issue of changing percentages in terms of voter turnout did not in any way call into question the final tally announced by the 1^st Respondent at the time he declared the results of the presidential election. It was that final tally that ought to have attracted the attention of the Petitioners.

42. Though the issue of appointment of the Constituency Returning Officers and their deputies was an issue pending in the Court of Appeal, the Supreme Court had an obligation to set the matter to rest.  The Court was considering an electoral matter in which it took the first instance, and the ultimate instance. Its singular jurisdiction in the electoral matter was to be secured by holding that the current legal status of the said electoral officials, carried validity for now, and for the future: irrespective of such determination as may later be made by any other Court on the matter.  Guided by exigency, and by judicial notice which must be taken of the reality of discharge of the assigned mandate of the electoral agency, the officers in question lawfully held their positions, and duly discharged the constitutional mandate devolving to them.  That was also because on the election date, the stay Orders granted by the Court of Appeal were firmly in place, and to state otherwise would be to negate the value of the validity of Court decisions, unless and until they were overturned. The decision of the High Court, to that extent, could not be the basis for invalidating the October 26, election.

43. The allegation of arbitrary relocation of polling stations contrary to the law as regards Kibra Constituency, had not been substantiated with any evidence showing that only 2 people voted at the polling station. No one had come up to say that he or she could not trace or find the polling station after it was moved.  It was also admitted that the polling stations were moved as a result of violence that erupted, and that the 2^nd Respondent exercised the powers which were conferred on it under Regulation 64(2) of the Elections (General) Regulations 2012. In that regard, the allegations by the Petitioners were in generality, and were not supported by any evidence and had been rebutted by the various returning officers.

44. Most polling stations had agents mainly from the 3^rd Respondent’s party. However, save for the bare allegations made by the Petitioners, there were no such serious anomalies as to demand that the election should be invalidated.

45. The issue of a Voters’ Register when raised in any election proceedings was a primary issue for determination. Registration of voters was also a constitutional imperative, by article 83 of the Constitution which outlined the prerequisites of voter registration.

46. Registration facilitated the effectuation of the right to vote. Article 38(3)(a) decreed that every adult citizen had a right, without unreasonable restrictions, to be registered as a voter. As such, the right to vote could not be fully enjoyed if the registration of voters was not properly conducted.

47. Gazette Notice No. 8751 suspended the registration of voters and revision of the voters’ roll, until November 8, 2017. The import of that suspension was that the total number of registered voters contained in the Register used for the August 8, General Election was still in operation during the October 26, 2017 fresh Presidential election. According to the evidence provided by the 1^st Respondent, the total number of registered voters, according to Form 34C was 19,611,423 registered voters, which tallies with the number recorded in the Gazette Notice No. 6250.

48. The 2^nd and 3^rd Petitioners did not lead further evidence to prove the alleged changes in the number of Registered Voters, or that indeed, that affected the outcome of the fresh Presidential election. In any event, the existence of the differences was attributed to the inclusion of prisoners from the total numbers by Kura Yangu Sauti Yangu. The evidence adduced by the Respondents, therefore, sufficiently discharged the Petitioners’ allegations of an inconsistent Voters Register.

49. Part II of the Elections Act comprehensively covered Registration of Voters and Determination of Questions Concerning Registration. Section 8A (3) of the Elections Act placed a mandatory obligation on the Commission to engage a reputable firm to conduct an audit of the Register of Voters,  for purposes of,  inter alia, verifying the accuracy of the Register and updating the Register. 

50. The Voters’ Roll was the centerpiece of an electoral process. At the heart of the right to vote was the obligation of the State to ensure that the registration of voters was undertaken and discharged properly. The Constitution addressed voter registration in four separate articles, namely: (Arts. 38(3)(a); 82(1)(c); 83; and 88(4)(f)). Kenya’s history of elections featured voter registration as one of the aspects that required intensive reform. When the Court determined the Raila 2013 case, the conclusion was that the Register was a product of several components. To consolidate those components into one central location, the KIEMS was introduced, which was a one-stop gadget, with three functionalities, being: voter registration; voter identification; result transmission. Each of those components was independent, yet they all reinforced the electoral process.

51. Voter identification addressed some of the fundamental issues that arose in earlier elections. According to the 2^nd Respondent, it was an elaborate system of identification, structured in a way that did not negate any persons’ right to vote. The composite of the voter identification designs were: Biometric identification; alphanumeric search with reference to identification documents; alphanumeric search with reference to physical keying in of the biographic data; Presiding Officer Authentication (Supervision mode); and complementary identification. With the checks guaranteed by these elaborate modes of identification, most of which were witnessed by voters, and visible in the eviRTSlogs provided by the 2^nd Respondent, the 2^nd and 3^rd Petitioners had not met the dictates of proof to show that: dead persons participated in the election; unqualified persons voted; persons with special needs were denied the chance to vote or that the total number of registered voters was in doubt at the time of the election.

52. Section 2 of the Elections Act, 2011 defined a Register of Voters to mean a current register of persons entitled to vote at an election, prepared in accordance with section 3, and included a register that was compiled electronically. As such, a print-out of the electronic register for purposes of the election was not in violation of the law. Regulation 61 (4) of the Elections (General) Regulations, 2012, required the Returning Officer to provide each polling station with both electronic and hard copy of the Register of Voters or such part thereof as contains the biometric data and alpha numeric details of the voters entitled to vote at a polling station.

53. The Voters’ Roll was subject to periodic inspection as decreed by section 6 of the Elections Act, 2011. The discretion to determine when a Register was closed to inspection rested with the Commission. That was necessitated by the administrative needs that attached to electoral management and preparation. That continuous exercise, therefore, showed that the Commission was not under immediate obligation to act on the recommendations of KPMG.

54.  The Voters’ Roll was a living document; with the addition of eligible persons entitled to vote, and the exit of others, its character also changed, necessitating regular updating. In that regard, Section 8 of the Elections Act, 2011 was very instructive.

55. The processes outlined by the law relating to registration, verification, inspection, audit, transfer of registration, and updating the Voters’ Register, were all time-bound. The 3^rd Petitioner questioned processes that occurred before the conduct of the General Election on August 8, 2017. The question of the Register was addressed by the Court (paragraph 301 of the Majority decision) in Raila 2017, and the Court was satisfied that the 1^st Respondent did not alter the Register as alleged by the 2^nd and 3^rd Petitioners. All evidence adduced and analyzed led to a contrary position. As such, there was no effect to the alleged failure by the 1^st Respondent to address issues raised in the KPMG audit. In view of all the evidence presented, and the submissions, the 2^nd and 3^rd Petitioners’ grounds on the Voters’ Register, failed.

56. Not every irregularity or procedural infraction is enough to invalidate an election. The irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a Court of law to nullify the same. While the petition made far-reaching allegations of irregularities, the same had been effectively rebutted, or explained away in replying affidavits, and submissions of counsel.

57. Examination of sample materials submitted to the Court by the 1^st and 2^nd Respondents (Forms 34A, 34B and Form 34 C), as against the ones attached to the Petitioners’ pleadings, lend credence to the explanations given to the Court by the Respondents.  While the 2^nd and 3^rd Petitioners made serious allegations of widespread malpractices having characterized the election, various counsel for the Petitioners spent most of their allocated time addressing the Court on collateral issues, instead of laying evidence, and discharging the burden of proof, by addressing the Respondents’ written submissions.

58. The Petitioners had not discharged the burden of proof to the standard established by the Court. At no time, did the burden shift to the 1^st and 2^nd Respondents. By the same token, the Respondents had not violated the applicable electoral law, in the management of the October 26, 2017 election.

59. At the time the cause of action arose, to wit, the October 26, 2017, the law then applying was the Elections Act, 2011. The amended laws did not become effective until November 2, 2017.  In that context, the common practice was that legislation should be effected prospectively and not retrospectively; that is, laws should be forward-looking and should not apply backwards in time. Prospective application of legislation is based on ancient Roman and English common law.  Prospectivity is also consistent with elemental notions of fairness.

60. It is a conventional rule of construction that, legislation must be addressed to the future, and a statute should not be given retrospective operation, interfering with antecedent rights. Legislation should bear only prospective effect, in the absence of special legislative signal to the contrary.  Where a legislative body thus wishes to change the law regarding a past event/action, its intent is to be clear enough. By this principle, where legislation is ambiguous, or silent as to its effective date, it should be presumed to be prospective.

61. In the present instance, when Parliament passed the amendment to section 83 of the elections Act, it did not state that the law should apply retroactively.  In the instant matter, prospectivity could be presumed to avoid construing a new law that otherwise might have attached new [post-enactment] legal consequences to events completed before the law’s enactment. 

62. The applicable election law, in respect of the conduct of the  October 26, 2017 election was the Elections Act, 2011, the Elections Laws (Amendments) Act, 2017 (Act No. 34 of 2017) not having come into effect as at the time of that election, and the same not having had retrospective application.

63. Having taken into account all the submissions on the question whether section 83 of the amended law was unconstitutional and invalid, and being aware, that the amended law was the subject of various pending causes before the High Court, there was no reason to take away the jurisdiction of other Superior Courts, and determining issues pending thereat. However, the position could be distinguished, from a matter arising in the course of a Presidential election in regard to which the Supreme Court had unqualified jurisdiction, and where the issue essentially related to a petition before the Court. 

64. The overlapping jurisdiction between the High Court and the Supreme Court only arose when interpreting or applying the provision in so far as it related to the Presidential petition.  Where however, the challenge to a statutory provision was directed as a ground in the context of a Presidential petition, the Supreme Court should not find any difficulty in addressing the same in the context of a Presidential petition. That did not exclude the power to refer the matter to the High Court, for its proper disposal, depending on the circumstances. The issue of the unconstitutionality or invalidity, or otherwise, of section 83 of the amended law would therefore be determined by the High Court, where the matter was under consideration.  There was no prospect of the High Court making a finding that would affect the Supreme Court’s determination of the present Presidential election petition.

65. Kenyan elections had to be evaluated, in their general outlook, in the context of recognized legal practice; of the operative law and governance institutions; and of the profile of stable socio-political order and of economic dynamics that have sustained, and continue to sustain the community.

66. The term “Credibility” had to be measured in the eyes of the general population for whom dependability and sustainability are all-important, on a day-to-day basis.  The rationale of the electoral process is that it should facilitate dependability of governance for the voting public. Though the test is largely subjective, the Court’s task is to rest its findings on its classical yardsticks of legality, rationality and objectivity, being guided by its true, professional understanding of the public interest. Thus in addressing credibility in the context of the impugned election among other things, the Court has to adhere to verifiable criteria, such as:

a.      Was there valid preparation for the election? 

b.     Did the election take place?

c.     Was the conduct of the election guided by prescribed law?

d.     What scope of discretion existed within the law? Was this duly exercised?

e.     Was a candidate duly declared elected?

f.        In general picture, was the constitutional task accomplished?

67. From the proper meaning of legitimacy, it was not tenable to attribute lack of legitimacy to Presidential elections duly conducted by the terms of the Constitution and the relevant statutes and regulations, and by the constitutionally-designated authority, strictly in compliance with the valid orders of the Supreme Court – election essential to the sustenance of the national governance process as constantly recognized by the national population. Only the failure of the conduct of such election would constitute lack of legitimacy – as it would occasion such uncertainty and appearance of crisis as would afflict the whole population in its social, economic and political engagement.

68. From the controlling factor of legitimacy, the election would be perceived as credible, in the absence of clear evidence that;

a.     the bulk of it simply failed;

b.     due procedure was not followed in the conduct of election;

c.     someone other than IEBC conducted the election;

d.     the procedures of vote counting were not followed;

e.     false results were announced, in place of the true outcome;

f.        the voters were turned away from polling stations by IEBC, or by State agencies of power;

g.     the motions of verification and announcement of vote-outcome were not complied with.

None of these factors were at play or at play in any significant manner.

69. In accordance with article 81(e) of the Constitution of Kenya, the repeat election was conducted by secret ballot; it was free from violence (more particularly, such violence being initiated and prosecuted by the electoral body, or by State agencies); the voters were not influenced by intimidation or corruption; the management process was in the hand of IEBC; voting was transparently done; such voting proceeded transparently, efficiently, accountably, with precision and clear expression of voter-preference. Such election hence had to be judged to have been credible for the purposes of the Constitution, the law, and the national expectation.

70. The burden fell on the 2^nd and 3^rd Petitioners, not just to allege, but to show by objective evidence the legal foundations of their claim; and thereafter to lay before the Court weighty evidence to sustain each and all of their claims. As already demonstrated, some of their claims were of such a generic order as to lend only feeble grounds for the Court to depart from prima facie perceptions of legitimacy and credibility. Examples in that category were:

(i)  That the 1^st and 2^nd Respondents acted outside the law, and demonstrated lack of independence and neutrality;

(ii)  That the 1^st Respondent publicly admitted that he could not guarantee free, fair and credible elections;

(iii)       That on 24^th October, 2017 the IEBC, without any legal basis, appointed one Consolata N.B. Maina as a Deputy National Returning Officer, a position unknown to law;

(iv)      that in a public address, the 1^st Respondent, hours to the elections, publicly acknowledged that everyone was still questioning whether there was going to be an election, thus showing unpredictability and uncertainty as to the prospect of the said election;

(v)       that the environment was not conducive to the conduct of a free, fair and credible election;

(vi)   that the election failed to meet the general principles stipulated under article 81(e) of the Constitution of Kenya, of free and fair elections;

(vii)     that the IEBC was not independent, and its decisions had been unpredictable and capricious, and not based on law: for instance, that the 1^st Respondent promised to investigate the offences arising out of the decision of the Supreme Court, but failed to do so; that he promised to carry out internal changes at the secretariat, but failed to do so; that he notified the public that there had been no scuffles at the Commission, but later wrote an accusing memorandum to its CEO/Secretary;

(viii)     that on  October 17, 2017, in her resignation statement, one Dr. Roselyn Akombe stated that the fresh election could not meet the basic expectation of a credible election, as the Commission was saddled with endless cases which it was losing, on account of legal advice skewed to suit partisan political interests;

(ix)      that the IEBC was not transparent: for instance, it could not clearly tell the public whether the voter turnout in respect of voters registered with biometrics exceeded that for those without;

(x)       that the IEBC failed to take every diligent and reasonable effort to ensure free, fair and credible election.

The October 26, 2017 elections met the threshold of credibility and legitimacy under the Constitution, certain anomalies highlighted in other parts of the Judgment notwithstanding. 

71. The Petitioners’ concern with voter turn-out was that it should be an expression of the legitimacy of the election. They constructed the point around the right of every citizen to vote, and the effect of violence and non-voting, in certain constituencies, and its effect on the outcome of the election. Whereas the right to vote was guaranteed, the Constitution did not impose a mandatory obligation on a citizen to vote in an election. The ultimate yardstick for determining the winner in a Presidential contest was provided for under article 138 (4) of the Constitution, in the following terms: A candidate would be declared elected as President if the Candidate received –

a.     more than half of all the votes cast in the election; and

b.     at least twenty-five per cent of the votes cast in each of more than half of the counties.

72. Article 134(4) spelt out the minimum threshold required of a candidate, before being declared elected. The quantifying element was the outcome in the votes cast in an election and, consequently, if the safeguards of the right to vote were guaranteed, and the optimum environment adhered to within the confines of articles 81 and 86 of the Constitution, and of all the imperatives of a free, fair and credible election, the matter resolved to the question of ‘votes cast’, and the ‘county threshold.’ A candidate only needed to attract a modicum of voter support, to earn a positive declaration. Therefore, if the foregoing attributes for declaration were not affected by the voter turn-out, the validity of the declaration stood uncompromised.

73. Low voter turn-out, without more, was insufficient as a basis for invalidation. Where the threshold for declaration had been met, to set aside an election because of low voter turn-out would be to deprive citizens who voted, of the benefit of their franchise.

74. There were various factors leading to the low voter turn-out. Re-running an election would generally have a negative impact on voter turnout. There was a proper basis, therefore, to find that voter turn-out had no direct connection to the validity of the declaration of a President-elect, even though, subject to article 138(4) of the Constitution, it remained, important for as many people as possible to participate in a Presidential election.

75. Though the 2^nd and 3^rd Petitioners urged persistently, that violence and intimidation were the factors that led to the low voter turn-out, and therefore compromised the credibility of the declared result, it was clear however, that such low voter turn-out was due to an amalgam of factors – including in particular, the active call for boycott, and the violent demonstrations, as well as voter-fatigue. Throughout the world, a call to boycott elections had the impact of lowering voter turn-out.

76. Regarding voter-fatigue, it was commonplace that voter turn-out is low, when voters were required to participate in elections which run one after another, with only a short break in-between, or if the number of elections in one year are numerous.  It was a scenario of common occurrence.  In France, the voter turn-out in the elections of April 23, 2017 was estimated to be 78.69%, while in the second round the voter turn-out was estimated to be about 38%. It was evident, therefore, that in repeat elections, and in by-elections, the voter turn-out was ordinarily lower than the turn-out in general elections. Going by such statistics, it could be deduced that low voter turn-out was not an unassailable indicator of the want of credibility of an election.

77. Voter turn-out in a repeat election is generally low. Although there were a myriad of factors in the present case that led to the low voter turn-out, an election could not be tainted solely on the ground of voter turn-out. The factors that led to low voter turn-out, although politically tainted, and inviting political solutions, were not sufficient as a basis for impugning the electoral process.

78.  From the emerging portrait of the issues in the case, the primary focus on the broad-textured concepts of “legitimacy” and “credibility” by the Petitioners led them on a course of prolixity. That stood in contrast to the object of conscientious invocation of the judicial process – which brought before the Court only a limited set of meritorious issues. That latter category had been duly answered, bringing the Court to the clear conclusion that the Petitioners’ case lacked merit.

79. In both Raila 2013 and 2017, the Supreme Court took the view that, noting the substantial public interest accompanying Presidential election petitions, it would not be in the interest of justice to penalise a losing party, with the burden of costs. That reasoning could also apply to the case, especially as the Petitioners had approached the Court as registered voters (whether or not they voted in the recent election), with complaints that the processes leading to, and the conduct of the  October 26, 2017 election did not meet constitutional or statutory thresholds, and that a further  election ought to be held. Although the petition did not succeed, the interests of justice would disincline the Court to make an adverse order on costs. By no means did that rule out the possibility that, in a proper case, the Court may dispense the penalty of costs upon a party, where such party brings forth a frivolous or vexatious case, or a case that distinctly aims at settling political scores. In particular, the domains of locus standi, or public interest litigation, as those which in a proper case, would attract penalty in costs. 

Njoki Ndungu, SCJ concurring;

80. The Supreme Court‘s jurisdiction in relation to electoral disputes is, broader than that of the other superior Courts. That interpretation, and the language of the Elections Act and the Election Laws (Amendment) Act, placed section 83 of the Elections Act at the centre of any determination by an election Court. After the hearing and analysis of the case from the submissions and evaluation of the evidence, the application of section 83 served as the Judge’s determinate vector. Therefore, although the Parties seemed to be in agreement that the constitutionality of that section was removed from the Court’s exclusive original jurisdiction and was the preserve of the High Court on the basis of a pending suit, the Court’s determination of that issue was necessary to complete the mandate bestowed under article 163(3)(a).

81. The Court had time and again held that issues pending before another Court would not be subject to determination before the Supreme Court but rather the Supreme Court would allow that other Court having the jurisdiction to determine the matter in the first instance. The High Court, the Court of Appeal and the Supreme Court were all empowered to interpret the Constitution and that in ordinary circumstances; litigation on issues of constitutional interpretation would in the first instance fall for determination by the High Court. However, it was important to distinguish those judicial pronouncements from the matter before the Court, because in all of those instances the Supreme Court had in mind ordinary causes coming before it by dint of article 163(4)(a) or (b) of the Constitution; i.e. appeals from the Court of Appeal; and, issues of constitutional interpretation or application which must have formed an integral part of the issues raised in the superior Courts and been the subject matter of determination. It followed therefore, that the Supreme Court would exercise deference to another superior Court below it in hierarchy, in instances in which the Court of original jurisdiction in respect of the matter before it, was that superior Court.

82. In a matter in which the Court was exercising exclusive original jurisdiction, – as an election Court – it was imperative for the Court to answer, in the first instance, such questions relating to interpretation and application of the Constitution that were so integrally linked to the determination of the validity or otherwise of the declared result.

83. Since the determination of a Petition challenging the declaration of a Presidential election fell to the exclusive original jurisdiction of the Supreme Court, the legal implication of leaving main issues unresolved was the creation of a lacuna in the application of the law. Losing the chance to clarify it until such time as the jurisdiction of the Supreme Court would be invoked in another like matter or such time as the Legislature illuminated the penumbras occasioned therein. The grave occasion of the Court’s acceptance of the submissions of counsel to skip the central determination revolving around the constitutionality of section 83 (as amended) left a matter properly before the Court unresolved. The Constitution did not countenance a situation whereby the Court made a partial determination on any matter, especially in an election cause.

84. In Kenya’s Constitutional scheme, the jurisdiction of the Supreme Court was not as rigid as would have been in 1989 when the Court of Appeal rendered its opinion in the Lillian S case on jurisdiction. There were rare instances, when the jurisdiction of the Supreme Court would engage the interpretation of an issue pending before a Superior Court. Where an issue is so integrally linked to the cause before the Court in exercise of its duty under article 163(3)(a) of the Constitution, the Court would address itself to that issue notwithstanding its status before a lower Court. The remarks relating to the mandate of the Supreme Court were not only applicable in exercise of its Appellate Jurisdiction but also in respect of its exclusive original jurisdiction.

85. The Supreme Court had on various occasions pronounced that it should utilize every opportunity that presented itself in the course of determination of matters before it to interpret the Constitution. In view of the requirement in section 3 of the Supreme Court Act, 2011 for the Court to:

a.     assert the supremacy of the Constitution and the sovereignty of the people of Kenya;

b.     provide authoritative and impartial interpretation of the Constitution; and,

c.     develop rich jurisprudence, among others,

The Court could not shy away from determining conclusively all the issues relating to constitutional interpretation and application that arose within a presidential election so long as such issues were central to the determination of the question of validity of the declaration of the President-elect.

86. The resolution of a Presidential Election Petition fell to the Court for determination in exercise of its exclusive original jurisdiction pursuant to article 140 of the Constitution.  Failure by the Court, to determine an issue that was integral to the Petition would have the effect of leaving part of the dispute between the parties unresolved. In terms of section 83, it would have the effect of leaving undetermined, the fulcrum of the election cause itself. Consequently, the resultant decision would be one falling short of the explicit commands of article 140 and those of article 159(2) that justice shall not be delayed and the purposes and principles of the Constitution shall be protected and promoted. Such an incomplete decision would also be contrary to the distinct objects of the Court set out in section 3 of the Supreme Court Act and the entire fabric of the Constitution.

87. In order for the Court to determine, with finality, the question of validity of the declaration of the president-elect after the election held on October 26, 2017, it must inevitably, determine all the issues that crystallised for determination and the applicable electoral law in that respect. The Court was charged to signal the law that it had relied on in arriving at its determination in any matter, more importantly, in determining the validity of a declaration in a Presidential election and for good reason. Firstly, it attracted enormous public interest. Secondly, other Courts looked up to the Supreme Court to offer the guiding compass on interpretation and application of the Constitution and its interplay with other applicable laws and Thirdly, for certainty and predictability of Kenya’s electoral jurisprudence.  

88.  The doctrine of presumption of constitutionality would be applicable in respect of section 83 of the Election Laws (Amendment) Act as long as that provision had not been adjudged unconstitutional by any Court.  The constitutionality of section 83 fell for the Court’s determination in the instant Petition.

89. The Election Laws (Amendment) Act 2017 was passed by Parliament on October 12, 2017 and submitted to the President for assent on October 13, 2017. Article 115(1) of the Constitution provided that the President must assent to a Bill or return it to Parliament within 14 days of receiving it. Article 115(6) provided that if the President did not assent to a Bill or return it to Parliament within that period, the Bill was deemed to have been assented to at the end of that period. Under article 116(1), the law had to be published in the Gazette within 7 days of its assent whether express or implied. Article 116(2) provided that an Act of Parliament came into force 14 days after publication in the Gazette unless the law provided for an alternative date.

90. The President having not assented to the subject Bill by October 27, 2017 (the 14^th day), by operation of law it was deemed assented to on that date. It was then published in the Gazette on November2, 2017. Since the Act provided that the law would come into force on publication in the Gazette, it came into force on November 2, 2017.

91. Section 83 of the Elections Act appeared in Part VII of the Act-Election Disputes Resolution, under the heading, ‘Election Petitions.’ More specifically, it addressed the conduct of the Court after an election Petition had been filed before it. In that instance, the determining cause triggering the application of the law was the cause presented for the Court’s determination. Section 83 contained the test to be applied by a Court while determining an electoral cause before it. Therefore, it did not follow an electoral event i.e. the election, it followed the declaration by a Judicial Officer, of an election cause. Section 83 (as amended) was therefore, the applicable law not just in the Petition, but in other election Petitions and appeals before other Courts.

92. Any challenge of constitutionality or otherwise of any law, act or omission ought to be brought on the basis of inconsistency with the Constitution as directed under article 2(4).The role of a Judge is to compare the impugned law or action with the provisions of the Constitution to determine consistency or otherwise. There must be more than an implied or incomplete argument touching on constitutionality to exhaustively determine a claim of inconsistency with the Constitution.

93. Inconsistency on the basis of statute and on the basis of conduct are distinguishable and ought to be comprehensively pleaded. It is not enough to plead inconsistency of a law with the Constitution as a tangential issue in a case. Claims of inconsistency must be well pleaded and argued by the Parties and where the Court determines that such a crucial question was given peripheral treatment, it may exercise its discretionary powers to ask the parties delve deeper into it. The consideration of any law or conduct against the Constitution is central to any legal proceedings.

94. The resolution of the question of section 83, as urged in the case, was very central to the matter before the Court. Section 83 of the Elections Act (as amended) was a product of the mandate bestowed on Parliament vide article 82 of the Constitution. Parliament has the legislative authority to enact laws, including, legislation on elections. Having determined that the section, as amended was the applicable law in determining the Petition and having noted that it was the determinate vector while making a judicial determination in any election Petition, interpretation of the section was therefore a vital component of the Court’s final determination.

95. Even where constitutional questions have not been presented concisely and clearly, the Court is not to overlook a determination of that issue. In a proper case, the Court ought not to defer the determination of a Constitutional issue central to the cause before it to another forum.

96. A principle developed in deference to the separation of powers and more specifically, in light of the role of Parliament under article 94 of the Constitution is ‘presumption of constitutionality.’ Any legislative action by Parliament is presumed Constitutional and the burden is on the person challenging the legislative act to show in what manner it breached the Constitution.

97. It was not apparent, either from the case by the Petitioners by way of rebuttal of the presumption of constitutionality or following the application of the law, that the same violated the Constitution and more specifically, fundamental rights and freedoms. As such the constitutional qualification against that presumption, in the strict terms of article 24 (2)(4) of the Constitution, did not arise.

98. The finality of the Supreme Court as a judicial agency, and its role as the custodian of the Constitution militates, save for rare instances dictated by the circumstances of each case, against the blanket presumption of constitutionality without delving into a holistic interpretation of the constitutional vis-a-vis, the impugned law or conduct. The Judiciary in general and the Supreme Court in particular retained control over interpretation of the Constitution.

99. The Petitioners claimed that the Amendment compromised the independence of the Judiciary and was an attempt to review the Supreme Court’s determination in Raila Odinga, 2017. The legislative authority of the Republic was vested in Parliament (art. 94). Parliament was the only body with powers to make provision having the force of law unless otherwise provided by the Constitution or legislation. Therefore, at the outset, by enacting the Election Laws (Amendment) Act, Parliament was well within its Constitutional Mandate.

100.                     It was admitted that on the October 2-5, 2017 the Joint Select Committee of the National Assembly and Senate committees on Election Laws (Amendments) Bill 2017 put in place avenues for public participation from the different stakeholders through the submission of proposals. That fulfilled the requirements of public participation as obliged under article 118 (1)(b).

101.                     The amendment to section 83 of the Elections Act was not meant to undermine the independence of the Judiciary. The purpose of the Elections Act (Amendment) Laws was elaborated in the National Assembly. The purpose according to the excerpts from the Hansard of the 12^th Parliament on October 10, 2017 was to harmonise the laws by clearing any ambiguities flowing from interpretation.

102.                     Parliament was in no way invasive into the judicial realm in amending the impugned section. The purpose of the Legislature was to clarify the law and bring it into conformity with international best practice.  A law does not become unconstitutional simply because it goes against the precedents of the Supreme Court or other Courts. The legislative mandate afforded an opportunity for the Courts to reconsider precedent and nurtures the development of constitutional law.

103.                     Article 81 of the Constitution outlined the principles of the electoral system. Article 86 of the Constitution on the other hand provided the imperatives of voting: voting method, counting, tallying, announcement, and post-election safeguards. Those principles were therefore cross-cutting. A stricter dichotomy would separate those two principled provisions as bearing on process and outcome. Those two critical elements of an election were crucial in the determination of its validity. The process gave rise to the outcome. Therefore, deviation from the process must be considered against its effect to the declared outcome.

104.                     Section 83 (as amended) provided a formula for evaluating the conduct of an election against the process and the outcome and was the product of article 82 of the Constitution. It also did not take away the powers of an election Court to determine compliance of an election with the purpose and principles of the Constitution. Therefore it was not inconsistent with the Constitution.

Petition dismissed:

        i.            Petition No.2 of 2017, Hon. John Harun Mwau v. Independent Electoral and Boundaries Commission & 2 Others), as consolidated, dismissed.

      ii.            Petition No.4 of 2017, Njonjo Mue and Anor v. the Chairperson of the Independent Electoral and Boundaries Commission & 3 Others, as consolidated, dismissed.

    iii.            The Presidential election of October 26, 2017 upheld, as was the election of the 3^rd Respondent.

    iv.            All parties to bear their costs.

Evidence Obtained In A Manner Inconsistent With the Bill of Rights Is To Be Excluded From Any Trial If The Admission of That Evidence Would Render The Trial Unfair Or Detrimental To the Administration Of Justice.

Njonjo Mue & another v Chairperson of Independent Electoral and Boundaries Commission & 3 others [2017] eKLR

Presidential Election Petition No.4 of 2017

Supreme Court of Kenya

D Maraga, CJ; P Mwilu, DCJ & VP; J B Ojwang; S C Wanjala; Njoki S. Ndung’u and Lenaola, SCJJ

December 11, 2017

Reported by Felix Okiri

Constitutional Law – fundamental rights and freedoms- enforcement of fundamental rights and freedoms- right to information – whether the right to information was absolute - what was the extent of the disclosure of the information held by a public entity  - whether a person had to prove entitlement to the right of information - what was the balance between the rights to privacy and protection of property guaranteed under articles 31 and 40 of the Constitution vis a vis rights to access of information as guaranteed under article 35 of the Constitution - Constitution of Kenya, 2010 articles 24(1), 31, 35 & 40 ; Access to Information Act, sections 3 & 6; Independent Electoral and Boundaries Commission Act, section 27

Evidence Law – admissibility of evidence- admissibility of illegally obtained evidence – admissibility of illegally obtained evidence under common law vis a vis Constitutional law -  whether evidence ought to be obtained in accordance with the provisions of both the Constitution and the law - whether memos obtained unlawfully could be admitted in court as evidence - whether illegally obtained evidence was admissible - what was the probative value of illegally obtained evidence

Brief facts

The instant application sought to expunge from the record various identified internal communications between members of the 2nd Respondent (Independent Electoral and Boundaries Commission). The 3rd Respondent’s (H. E. Uhuru Muigai Kenyatta) position was that the said memos were obtained unlawfully, contrary to section 27 of the Independent Electoral and Boundaries Commission Act, and that article 50(4) of the Constitution also required that such evidence be excluded.

The Petitioners (Njonjo Mue and Khelef Khalifa) contended that the said memos were obtained legally and that in any event, article 50(4) of the Constitution gave an exception under which any such evidence could be relied upon by the Court. Furthermore, they argued that the memos, apart from being in the public domain, formed an integral part upon which their petition was grounded and their presence on the record would assist the Court in making a fair determination

Issues

1. Admissibility of the evidence under common vis a vis constitutional law.
2. What was the extent of the disclosure of the information held by a public entity and under what circumstances could a person be denied right to information?
3. Whether a person had to prove entitlement to the right of information and what was the threshold of proof of entitlement to that right?
4. What were the procedures provided in law on how a person could access information held by the State or State organs
5. Whether evidence ought to be obtained in accordance with the provisions of both the Constitution and the law.
6. What was the applicable test in both civil and criminal cases in considering whether evidence was admissible
7. What was the place of illegally obtained evidence in terms of admissibility and admissible and its probative value.
8. What was the balance between the rights to privacy and protection of property guaranteed under articles 31 and 40 of the Constitution vis a vis rights to access of information as guaranteed under article 35 of the Constitution

Relevant provisions of the law

  Independent Electoral and Boundaries Commission Act

 Section 27

Management of information

1. The Commission shall publish and publicize all important information within its mandate affecting the nation.
2. A request for information in the public interest by a citizen—

1. shall be addressed to the secretary or such other person as the Commission may for that purpose designate and may be subject to the payment of a reasonable fee in instances where the Commission incurs an expense in providing the information; and
2. may be subject to confidentiality requirements of the Commission.

(3)       Subject to article 35 of the Constitution, the Commission may decline to give information to an applicant where—

  (a) the request is unreasonable in the circumstances;

  (b)the information requested is at a deliberative stage by the Commission;

  (c) failure of payment of the prescribed fee; or

  (d) the applicant fails to satisfy any confidentiality requirements by the Commission.

(4)       The right of access to information under article 35 of the Constitution shall be limited to the nature and extent specified under this section.

(5)       Every member and employee of the Commission shall sign a confidentiality agreement.”

  The Constitution of Kenya, 2010

 Article 24(1)

A right or fundamental freedom in the Bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-

1. the nature of the right or fundamental freedom;
2. the importance of the purpose of the limitation;
3. the need to ensure that the enjoyment of rights and fundamental freedoms by an individual does not prejudice the rights and fundamental freedom of others; and
4. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

       Article 35

          (1) Every citizen has the right of access to:

1. Information held by the State; and
2. Information held by another person and required for the exercise or protection of any right or fundamental freedom.

             (3) Every person has the right to the correction or deletion of untrue or

                 misleading information that affects the person.

Article 50(4)

Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

Access to Information Act (Act No. 31 of 2016)

  Section 3

“(a) give effect to the right of access to information by citizens as provided

       under article 35 of the Constitution;

(b) provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles;

     (c) provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law;          

(d)      promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information;

(e)       provide for the protection of persons who disclose information of public interest in good faith; and      

            (d) provide a framework to facilitate public education on the right to   

                   access information under this Act.

Section 6

 (1) Pursuant to article 24 of the Constitution, the right of access to information under article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to:

(a) undermine the national security of Kenya;

(b) impede the due process of law;

(c) endanger the safety, health or life of any person;

            (d)involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;

           (e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

          (f) cause substantial harm to the ability of the Government to manage the economy of Kenya;

           (g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

           (h) damage a public entity's position in any actual or contemplated legal proceedings; or

           (i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

Held

1. In order to give effect to the rights under article 35 of the Constitution, Parliament enacted the Access to Information Act which provided for the modalities of obtaining any information held by the State or another person. Section 3 was relevant to the instant application as it stipulated the objectives of the Act. Section 6(1) on the other hand provided the extent of the disclosure of the information held by an entity.
2. Article 35(1)(a) and (b) of the Constitution, read with section 3 of the Access to Information Act showed without unequivocation that all citizens had the right to access information held by the State, or public agencies including bodies such as the 2^nd Respondent. A plain reading of article 35(1)(a)of the Constitution revealed that every citizen had a right of access to information held by the State which included information held by public bodies such as the 2^nd Respondent. The second consideration to bear in mind was that the right to information implied the entitlement by the citizen to information, but it also imposed a duty on the State with regard to provision of information. Thus, the State had a duty not only to proactively publish information in the public interest. That was the import of article 35(3) of the Constitution of Kenya which imposed an obligation on the State to not only publish and publicise any important information affecting the nation but also to provide open access to such specific information as people might have required from the State.
3. The right of access to information was however not absolute and there were circumstances in which a person was denied particular information. Specifically, procedures were provided in a law on how a person ought to access information held by another person and particularly a State organ or entity. Section 8 of the Access to Information Act in the above context thus provided that a person could apply in writing, or where one was unable to write, could apply orally to an information officer who was to put the request in written form.  
4. Any such request for information was to be processed within 21 days. Furthermore, section 27(2) of the Independent Electoral and Boundaries Commission Act specified the person to whom such a request was to be addressed to and further provided circumstances when the Commission could withhold any information sought.  One such circumstance was where the information sought related to a matter under deliberation and therefore no conclusive findings had been made by the Commission.
5. From the foregoing, the rights of access to information relevant to the matter before the Court was limited by operation of law, in the instant case, being the procedures for access of any information under section 27(2) of the Independent Electoral and Boundaries Commission Act, as read together with sections 6(1) of the Access to Information Act. The Constitution, further set limitations on rights including the right to access to information.
6. In common law, the applicable test in both civil and in criminal cases in considering whether evidence was admissible was whether it was relevant to the matters in issue. If it was relevant, it was admissible and the Court was not concerned with how it was obtained.  It mattered not how one obtained the evidence. Even where it was stolen, the evidence was still admissible. The common law did not reject relevant evidence on the ground that it had been obtained illegally. So far as civil cases were concerned, the Court had no discretion; the evidence was relevant and admissible. The Court could refuse it on the ground that it may have been unlawfully obtained in the beginning. The above position applied generally including to election petitions which were matters sui generis.
7. The 3^rd Respondent relied on article 50(4) of the Constitution and urged that evidence obtained in a manner that violated any right or fundamental freedom in the Bill of Rights was to be excluded as the admission of that evidence had the possibility of rendering the trial unfair, or detrimental to the administration of justice. Evidence ought to have been obtained in accordance with the provisions of both the Constitution and of the law. Obtaining evidence and indeed, as was in the instant case, seizing the same without first obtaining appropriate warrants violated Constitutional norms. The right to property as well as the right to privacy stood violated.
8. Article 50(4) of the Constitution provided that evidence obtained in a manner that violated any right in the Bill of Rights had to be excluded if the admission of that evidence had the impact of rendering the trial unfair or otherwise detrimental to the administration of justice.
9. However, not all evidence illegally obtained led to some form of prejudice and therefore occasioning automatic termination of a criminal trial. Such an approach negated and diluted, invariably, the words of the Constitution emphasized above. There had to be established that a right in the Bill of rights was unjustifiably violated whilst obtaining the evidence in question. Secondly, there had to be shown that the admission of such evidence could render the trial unfair or be detrimental to the administration of justice. That was the correct interpretation of the issue at hand generally.
10.  In the instant matter, the Constitution provided for the right of access to information which had been operationalized through two pieces of legislation, the Independent Electoral and Boundaries Commission Act and the Access to Information Act. The information held by the State or State organs, unless for very exceptional circumstances, had to be freely shared with the public. However, such information was to flow from the custodian of such information to the recipients in a manner recognized under the law without undue restriction to access of any such information.
11.  A duty had also been imposed upon the citizens to follow the prescribed procedure whenever they required access to any such information. That duty could not be abrogated or derogated from, as any such derogation could have led to a breach and/or violation of the fundamental principles of freedom of access to information provided under the Constitution and the constituting provisions of the law.  It was a two way channel where the right had to be balanced with the obligation to follow due process.
12. The Petitioners, using the above test, did not show how they were able to obtain the internal memos showing communication between employees of the 2^nd Respondent. Further, it had been alleged that those memos had only been shown in part, and taken out of context to advance the Petitioners’ case against the 1^st and 2^nd Respondents, and to an extent, the 3^rd Respondent. No serious answer had been given to that contention.  The use of such information before the Court, accessed without following the requisite procedures, not only rendered it inadmissible but also impacted on the probative value of such information.
13. In the instant case, there had been a clear violation of laid out procedures of law attributable to access of information, and violation of the rights of privacy and protection of property that the 2^nd Respondent was guaranteed under the Constitution and section 27 of the IEBC Act.  That was because the limitation imposed by both article 50(4) and section 27 of the IEBC Act aforesaid squarely applied to the matter before Court.
14. The Court had to find a balance between the Petitioners’ rights to access of information as guaranteed under article 35 of the Constitution, against those of the 1^st and 2^nd Respondents’ rights to privacy and protection of property also guaranteed under articles 31 and 40 of the Constitution. If access was in the instance, obtained through the laid down procedure under section 27 of the Independent Electoral and Boundaries Commission Act, and section 6(1) of the Access to Information Act, then the rights of both the Petitioners and the Respondents would have been protected, by dint of the applicable laws that set out the limitations for access of any such information.
15. The Petitioners had further been unable to establish that the internal memos obtained from the 2^nd Respondent were to be used in the protection of fundamental rights or freedoms, or that without such information; they would have been unjustly prejudiced. Information could only be required for the exercise or protection of a right if it would have been of assistance in the exercise or protection of the right. Therefore, in order to make out a case for access to information, an applicant had to state what the right was that he wished to exercise or protect, what the information was which was required and how that information was to assist him in exercising or protecting that right. The threshold requirement of 'assistance' had thus been established as: where the requester could not show that the information would have been of assistance for the stated purpose, access to that information was to be denied. Self-evidently, however, mere compliance with the threshold requirement of 'assistance' was not to be enough.
16. From the foregoing, it had to be established that the public interest that the Petitioners sought to advance was not an infringement on the Respondents’ rights, and that the acts of the Petitioners could have been justifiably upheld in an open and democratic society. However, by violating the provisions of the same Constitution that they lauded in their objection, the Petitioners not only violated the provisions of sections 27 of the Independent Electoral and Boundaries Commission Act, but also breached the provisions of articles 24(1) and 35(1) of the Constitution and in the circumstances, their use of the internal memos did not advance the interests of justice.

Application allowed

Orders

1. The following documents were expunged from the record:

1. The Internal Memo dated 5^th September, 2017 from the 1^st Respondent to the Chief Executive Officer, Mr. Ezra Chiloba marked NM-3 annexed to the Affidavit of Njonjo Mue.
2. The Internal memo dated 9^th October, 2017 from a former Commissioner of the 2^nd Respondent, Ms. Roseylne Akombe to the 1^st Respondent marked NM-10 annexed to the Affidavit of Njonjo Mue sworn on 5^th November, 2017.
3. The Internal Memo dated 14^th October, 2017 from the Chief Executive Officer of the 1^st Respondent addressed to the Directors, Managers, CEMS and CECs of the 2^nd Respondent marked as NM-12 annexed to the Affidavit of Njonjo Mue sworn 5^th November, 2017.
4. Internal Memo dated 16^th October, 2017 from a former Commissioner of the 2^nd Respondent, Ms Roseylne Akombe to the 1^st Respondent marked as NM-13 annexed to the Affidavit of Njonjo Mue sworn on 5^th November, 2017.
5. The Internal Memo dated 16^th October, 2017 from a former Commissioner of the 2^nd Respondent, Ms. Roselyn Akombe to the 1^st Respondent marked as PA-7 annexed to the Affidavit of Perpetua Adar sworn on 5th November, 2017.

2. No orders as to costs.

Supreme Court had no obligation to take up matters that ran contrary to public interest

Brief facts

Issues

1. Whether the Supreme Court while determining the presidential election petition could take up causes that ran contrary to public interest.

Held

1. The Supreme Courts time and other resources were gravely strained at the moment of determining the instant presidential election petition; yet they had to be deployed in essential causes of service to the Kenyan people.
2. There was an obligation of judicial conscientiousness, which dictated that the Court had to decline to take on those causes that ran contrary to the public interest, and that made none by nominal endowment to the true cause of dispute settlement. The instant application fell squarely in the category of tendencies that negated the Courts service commitment.

Legal requirements to be enjoined as an interested party in Supreme Court proceedings

Brief facts

Ekuru Aukot, the Party Leader of the Thirdway Alliance Kenya, made an application for joinder as an interested party in the Presidential Election Petition No 4 of 2017. He contended that he had direct and legitimate interest in the petition; that he was a presidential candidate for both the general election held on August 8, 2017 and the fresh presidential election held on October 26, 2017; that being a presidential candidate in the election which was the subject of the instant petition, he would suffer prejudice if he was not enjoined as a party in the proceedings; that he would advance submissions that were relevant and useful to the petition and which would be different from those of the other parties since he had been an active player in the elections and had gathered crucial information, facts and analysis that had a direct bearing on the instant proceedings and the ultimate outcome; and, that he would be directly affected by the outcome of the instant petition.

The applicant further contended that he had made a similar application within Presidential Election Petition No 1 of 2017 and the court had found that he would have been prejudiced if not enjoined and that he had an identifiable stake in the matter in line with the criteria laid down in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No 12 of 2013, [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No 15 & 16 of 2015 (Consolidated) [2016] eKLR.

Issues

1. What were the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court proceedings?
2. Whether the applicant satisfied the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court proceedings.

Relevant provisions of the law

The Supreme Court Rules, 2012;

Rule 25; Interventions;

(1) A person may at any time in any proceedings before the court apply for leave to be joined as an interested party.

(2) an application under this rule shall include :-

(a) a description of the interested party;

(b) any prejudice that the interested party would suffer if the intervention was denied; and

(c) the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the court and different from those of the other parties.

(4) An application under this rule shall be determined on the basis of written submissions. Provided that the court may, where the applicant is unrepresented, direct that submissions may not be made orally.

The Supreme Court (Presidential Election Petition) Rules, 2017;

Rule 4 (2);

4(2); Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2017 in so far as they are not inconsistent with the Act or these Rules, shall apply to an election petition.

Held

1. The applicant qualified to be joined as an interested party and allowed the application under rule 25 of the Supreme Court Rules as read with rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017.
2. The application met the principles laid out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No 12 of 2013 [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No 15 & 16 of 2015 (Consolidated) [2016] eKLR in that the applicant having been a presidential candidate in the fresh presidential election would have been directly affected by the outcome of the petition in the event of invalidation of the declared results.

An application challenging the conduct of presidential election candidates in accepting or rejecting the presidential election results did not warrant consolidation with the presidential election petition.

Brief facts

The petitioner contended that the actions of the 6^th and 7^th respondents (Raila Omollo Odinga and Stephen Kalonzo Musyoka) to boycott and sabotage the conduct of elections on October 26, 2017 amounted to treason and an attempt to unconstitutionally establish a government in Kenya. Upon perusal of the petition, the Hon Chief Justice directed for the petition to be heard by the court after hearing the time bound presidential election petition. Undeterred, the applicant returned to the Supreme Court with an application under section 24 of the Supreme Court Act and rule 26 of the Supreme Court Rules that sought for the petition to be consolidated and heard together with the presidential election petition.

Issues

1. Whether an application challenging the conduct of presidential election candidates in accepting or rejecting the presidential election results warranted consolidation with the presidential election petition.
2. Whether the Petition had raised questions with regard to the validity of the presidential election.

Relevant provisions of the law

Held

1. The application did not fall within the purview of article 140 of the Constitution which required petitions challenging the election of the president elect to be filed within seven days of the declaration of the results of the presidential election and heard and determined within 14 days of filing.
2. If the Supreme Court lost focus and succumbed to pressure and allowed all cases by parties aggrieved by the conduct of a presidential election to be heard within the period of 14 days allowed by article 140 of the Constitution , it would be swamped by an avalanche of petitions it would not be able to determine within that time frame and occasion a constitutional crisis. The instant petition was not time bound. It would be heard after the Supreme Court determined the petitions challenging the election of the president.            

Supreme Court strikes out a party to a presidential election petition on grounds of having a common cause with other parties in the petition

Issues

1. Whether party, which had a common cause with other parties to a presidential election petition, would be struck out as a party to the petition.

Held

1. There was an intricate network of common cause which linked the 4^th respondent, the National Super Alliance, to other parties in the petition. It was detrimental to the 3^rd respondent who in view of the mode of joinder of the 4^th respondent, would have no opportunity to safeguard his rightful interests in the electoral process. In the circumstances, it was appropriate to strike out the 4^th respondent as a respondent in the petition.

Presidential election petitions and other Supreme Court petitions cannot be heard and determined together.

Brief facts

The petition did not entail a challenge to the election of the President-elect but there were attempts to have it handled at the same time as other petitions which challenged the validity of the presidential elections held on October 26, 2017. The Supreme Court was engaged in hearing two other petitions under article 140 which challenged the election of Hon. Uhuru Muigai Kenyatta and Hon. William Samoei Ruto as President and Deputy President-elect respectively. Those petitions were brought under the provisions of article 140 of the Constitution and they constituted time-bound litigation for which a determination was required within 14 days.

Jubilee Party applied to be joined as an Interested Party in the petition. Meanwhile, counsel for the Respondents raised a Preliminary Objection challenging the jurisdiction of the Supreme Court to hear the petition.

Issues

1. Whether a petition that did not entail a challenge to the election of the President-elect but sought to have it heard at the same time as other petitions which challenged the validity of the presidential elections could be heard and determined together with other petitions which entailed a challenge to the election of the President-elect.

Held

1. The instant petition did not challenge the election of the President-elect. It was brought under article 163(3) of the Constitution. It was therefore not a time-bound litigation under the provisions of article 140 of the Constitution which would need to be determined within 14 days. It was therefore not a petition which could be heard together with Petitions Nos 2 and 4 which entailed a challenge to the election of the President-elect. It ought to be taken out of the cause list of matters to be heard within the 14 days which would conclude on December 13, 2017.
2. The Court had no time to rule on the application by Jubilee Party or the respondent's preliminary objection. The ruling on the applications made was deferred to a date to be given on notice.