Njau v Gedi & 2 others; United States of America Embassy in Kenya & 3 others (Interested Party)
Njau v Gedi & 2 others; United States of America Embassy in Kenya & 3 others (Interested Party) (Constitutional Petition 10B of 2022)  KEHC 11889 (KLR) (21 July 2022) (Judgment)
A person with multiple nationalities was not qualified to run for public elective posts.
The petitioner challenged the clearance of the 1st respondent to vie for the seat of Member of Parliament Fafi Constituency in the 2022 General Elections by the Independent Electoral and Boundaries Commission (IEBC/2nd respondent). The petitioner alleged that the 1st respondent held multiple nationalities. The petitioner presented a copy of the 1st respondents Kenyan National Identity Card, that indicated the 1st respondent was a Kenyan by birth; and copies of the 1st respondents American Passport and e-Visa application that indicated that the 1st respondents place of birth was Somalia and further indicated that he was Somali-American dual national.
The 1st respondent questioned the admissibility of the evidence placed before court by the petitioner. He stated that it was illegally obtained and as such was not admissible. The 1st and 2nd respondents also contended that the petition was not pleaded with precision as it did not state the alleged provisions violated and the acts and or omission leading to the alleged violation of the Constitution. Further no particulars and manner of the contravention or injury to be suffered was demonstrated.
- Whether the principle requiring constitutional petitions to be pleaded with reasonable precision was met in the instant petition.
- Whether the High Court had the jurisdiction to consider a case that questioned the eligibility of a candidate to vie for a public elective post on grounds that he had multiple nationalities, considering that the mandate to certify eligible candidates lay with the Independent Electoral and Boundaries Commission.
- Whether a passport was a public or private document.
- Whether illegally acquired evidence could be admissible on grounds that failing to consider the evidence would go against public interest and would violate the values and principles of the Constitution.
- At what point did the burden of proof placed on a petitioner to prove allegations in a constitutional petition shift to the respondents to disprove the allegations?
- Whether the clearance of the 1st respondent by the IEBC (2nd respondent) to run for a public office was undertaken in accordance with the Constitution and the law.
Relevant provisions of the law
Constitution of Kenya, 2010
50. Fair hearing
(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.
Evidence Act, Cap 80
Section 35(1) and (2)
35. Admissibility of documentary evidence as to facts in issue
(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say
(a) if the maker of the statement either
(i) had personal knowledge of the matters dealt with by the statement; or
(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence
(a) notwithstanding that the maker of the statement is available but is not called as a witness;
(b) that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.
- The petition had set out the foundation or basis of grievances and facts of the case which were detailed. It articulated alleged violations, had linked the alleged acts and omission to the rights of the petitioner and the people on whose behalf he had petitioned the court and the manner in which the articles concerned him and it thus reasonably met the threshold relating to the requirement that constitutional petitions were to be pleaded with reasonable precision.
- A constitutional issue was one which confronted the various protections laid out in the Constitution. Such protections could be in respect to the bill of rights or the Constitution itself. The issue had to demonstrate the link between the aggrieved party, the provision of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.
- In as much as the issue of qualification in terms of citizenship of a nominee ought to have been considered at the clearance stage by the 1st respondent, the same was no less a constitutional question, and if for whatever reason the 1st respondent or any other organs failed to diligently consider the issue or did not fully consider the said issue leading to a violation of the Constitution the court had the duty to consider any such violation, uphold and safeguard the Constitution.
- The evidence placed before the court if considered would not be unfair to the administration of justice in any way. The document which had not been denied as being a copy of the 1st respondents passport would be of assistance to the court in determining a matter of general public importance, a matter touching on a value and principle espoused by the Constitution. It would place before the court information necessary to see if there was a violation of citizenship. The passport belonged to the 1st respondent; he had not denied it neither had he negated the assumption that it was in his possession. The passport was not a public document and no matter how diligent the petitioner was he could not have gained possession of the same.
- The document in question was an individuals document. Though a passport was a public document so to speak, it was in the possession of the holder. The urgency of the matter required quick action. The Attorney General could not quickly access information from the Department of Immigration services. The information was relevant to the issue in question and necessary in the public interest. Therefore, balancing between the need to access the document and the interest of fair adjudication of the matter and in the circumstances of the instant matter, justice would be done if the secondary evidence was admitted.
- Though the 1st respondent did not have the primary duty to present his passport before the court merely because the petitioner spoke of it, the petitioner in the circumstances made a prima facie case, the 1st respondent in his own interest and in the public interest ought to have made the passport available to lay to rest the alleged issue of his multiple nationality and to prove that indeed what he enjoys was dual nationality. That was a typical case where the burden of proof shifted to the 1st respondent.
- Citizenship and representation of citizens were key chapters of the Constitution, they played a major role in the governance structure and would not to be taken lightly on the face of allegations of violation of the Constitution. The respondents sat back and casually as if in defence of the 1st respondent, without any quick investigation through a multi-agency approach to quickly put information before court to negate or affirm the issue. The petitioner had placed prima facie evidence before court but they came to court with complacency; citing the courts lack jurisdiction in an all-important subject touching on the interpretation and protection of the Constitution and state security and ones allegiance. The evidentiary burden had shifted to them.
- Article 3 of the Constitution mandated every person to up hold and defend the Constitution. The petitioner placed his evidence of the 1st respondents passport indicating that he was an American born in Somalia in contrast to the information on the Kenyan Identity Card which information he gave to 2nd respondent that he was born in Garissa County.
- The petitioner discharged his legal burden and at that point the evidentiary burden shifted to the 1st respondent to explain whether he was born in Somalia or Kenya and why the conflicting information in the two crucial nationality documents, secondly his connection to Somalia which in the American passport as opposed to his connection with Kenya which he claimed was his country of birth as well.
- The conflicting information in the American passport and the Kenyan National Identity card raised also the question of credibility and integrity as espoused in chapter six as read with the Leadership and integrity Act. The petitioner in the absence of any evidence to the contrary by the respondents and the 2nd, 3rd and 4th interested parties, placed before court evidence that the 1st respondent was a holder of Somalia/American and Kenyan nationalities and there was violation of the Constitution and or likely violation and /or threat to the Constitution and the law.
- The Constitution of Kenya permitted citizens of Kenya by birth to have dual citizenship and not multiple nationalities as is the case of the 1st petitioner. The acts and /or Omissions of the 2nd and 3rd respondents, the 2nd, 3rd and 4th interested parties failed their mandate and their obligations under the Constitution and statute. The 1st respondent failed to present documents ascertaining that he was indeed a Kenyan Citizen as prescribed by the Constitution and electoral laws to qualify to run for the seat of Member of Parliament for Fafi Constituency. The 1st respondent was in violation of chapter 6 of the Constitution as read with the Leadership and Integrity Act. The petitioner was within his rights as a Kenyan for himself and the public good to move the court.