High Courts jurisdiction in pre-election disputes

Brief facts

The petitioner claimed that he got information that the 1^st respondent had not resigned as County Executive Committee Member for Finance of the County Government of Meru and that he was seeking re-election as Deputy Governor for Meru County in the general elections of August 9, 2022. The petitioner claimed that his advocate on April 24, 2022 wrote a letter to the 6^th respondent, the Independent Electoral and Boundaries Commission (IEBC) seeking information why the 1^st respondent was discharging his duties as a county executive committee member but got no response.

According to the petitioner, his advocate on June 6, 2022 wrote a letter to the 3^rd respondent, the County Returning Officer Meru County, seeking information concerning the self-declaration form tendered by the 1^st respondent which formed the basis for his clearance to contest but got no response. The petitioner sought among others; a declaration that the denial by the 2^nd and 6^th respondents to provide him with the information as sought was a violation of his right to access information; and a declaration that the 1^st respondent was not qualified to vie for the seat of Deputy Governor, Meru County in the general elections.

The 1^st and 2^nd respondents opposed the petition and argued that the court had no jurisdiction to determine pre-election disputes and complaints and to do so would amount to usurping the alternative dispute jurisdiction of IEBC.

Issues

1. Whether the High Court had jurisdiction over pre-election disputes before the Independent Electoral and Boundaries Commission had made a decision on the dispute. 
2. Whether a county Governor had the obligation to provide information where the information was sought through a letter addressed to the county secretary. 

Relevant provisions of the law

Access to Information Act, 2016

Section 7 - Designation of information access officer

(1) A chief executive officer of a public entity shall be an information access officer for purposes of this Act.

(2) A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

Held

1. The jurisdiction of the High Court under article 165(3) of the Constitution to adjudicate on matters of and concerning the Constitution was wide. The High Court had the exclusive mandate to determine issues relating to the Elections Act. When interpreting provisions of the statutes, the court should endeavour to give a purposive approach to legislative interpretation. The court had jurisdiction to determine questions regarding interpretation of the Constitution.
2. Pre-election disputes were a reserve of the IEBC or the court acting in judicial review or exercising its supervisory jurisdiction. Pre-election disputes such as the instant one that related to suitability and eligibility for nomination of candidates, had to be resolved by the IEBC in the first instance. The High Courts jurisdiction was only triggered once the IEBC made a decision on the issue. 
3. No complaint concerning the 1^st respondents suitability for nomination as deputy governor had been filed with IEBC. The issue concerning the suitability of nomination of the 1^st respondent and whether the 1^st respondent was required to resign by February 9, 2022 was brought to the court prematurely.
4. Section 7 of the Access to Information Act, 2016 provided for the designation of information officers. The letter annexed by the petitioner dated April 12, 2022 seeking information concerning the 1^st respondents resignation was addressed to the County Secretary Meru County. There was no evidence that the letter was served on the County Secretary. On its face, the letter revealed that it was served on a lady described as secretary to the Governor. Even assuming that the letter was indeed delivered to the 2^nd respondent, which was denied, the 2^nd respondent had no obligation to provide the information sought for the reason that no request was made to him. 
5. The petitioners advocates letter dated June 6, 2022 revealed on its face, that it was addressed to the 3^rd respondent but was served on the firm of Kennedy Nyagaka Nyamokeri Advocates. There was no evidence that the letter was served on the 6^th respondents chief executive officer and even if for arguments sake the letter was brought to the attention of the 3^rd and 6^th respondents, the letter did not warrant any response for the reason that it violated section 7 of the Access to Information Act, 2016.