Charles Kagai Mwihia & another v Ndolo Ayah & another
High Court, at Nairobi December 11, 1992
Civil Case No 6287 of 1992
Constitutional Law-fundamental rights and freedoms-procedure to be followed to invoke the High Court’s jurisdiction where there is an allegation of violation - where there is a procedure for redress of any particular grievance by the Constitution-whether a party can invoke order LIII of the Civil Procedure Rules.
Election Petition - presidential elections - disqualification from nomination as a presidential candidate-facts which a party needs to establish where it is alleged that a presidential candidate was ineligible for nomination-procedure of challenging the nomination by way of a petition-provisions of section 19 of the National Assembly and Presidential Elections Act section 5(2) of the Constitution.
Election Petition-nominations-whether preliminary elections to stand for elections are part of election process-where the nomination exercise is flawed-whether such elections can be subsequently challenged by way of an election petition.
The applicants filed a constitutional reference by way of originating summons seeking a declaration that Kenya African National Union was not legally entitled to nominate H E Daniel Toroitich Arap Moi to be its presidential candidate in the General Elections scheduled for 29th December 1992 as he was disqualified by section 9 of the Constitution. It was argued for the applicants that as electors and registered voters, they were entitled to seek the intervention of the Court to prevent what they regarded as a violation of the Constitution because H E President Moi having previously held the office of President of Kenya for more than two terms was ineligible and disqualified from nomination for the same office.
The respondents applied to have the originating summons struck out on the grounds that they had no locus standi to commence the action, the application was bad in law, no violation of the Constitution or any law had occurred and that section 9 of the Constitution was not retrospective in its application.
1. Section 84(1) of the Constitution gave the High Court original jurisdiction to hear and determine applications made by a person who claims that any of his fundamental rights and freedoms guaranteed under sections 70-83 of the Constitution have been violated.
2. For a declaration to issue that the President be declared disqualified from being nominated as a presidential candidate, the application must be supported by evidence that the President does not comply with any of the conditions laid down in section 5(2) of the Constitution.
3. Whilst subsection (1) of section 10 of the Constitution provided that section 44 shall also apply to the hearing and determination of the validity of a presidential election, subsection (2) stipulates, without derogating from the provisions of section 44, that only one application shall be brought.
4. The President can thus be declared under the provisions of section 44 of the Constitution which have been made by section 10 (1) of the Constitution to apply to the President, not to have been validly elected for any number of reasons including his not being qualified to be nominated in the first place, for election as a President.
5. The National Assembly made mandatory provisions in section 19 of the National Assembly and Presidential Elections Act to the effect that such an application shall be by way of a petition subsequent to the presidential elections, to be tried by an Election Court consisting of three judges.
6. Preliminary elections such as nominations to stand for elections are part of the election process and as such, they could be challenged after the elections by way of an election petition.
7. Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Order LIII of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.
Application dismissed with costs.
1. Thande v Montgomery  EA 341
2. Speaker of the National Assembly v Karume  KLR 22
1. Constitution of Kenya sections 5(2); 9; 10(2); 40; 44; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 81; 82; 83; 84(1).
2. Constitution of Kenya (Amendment) Act (No 2) 1991 (Constitution of Kenya Sub Leg)
3. National Assembly and Presidential Elections Act (cap 7) section 19.
Mr Kariuki for the Applicants
Mr A B Shah for the Respondents