Analysis and Determination
8.Before delving into the merits of the case, the court wishes to preliminarily address the allegation by the respondents that since the Disputes Resolution Committee already adjudicated upon this issue, the same cannot be re-litigated through this petition. It is clear that these are not judicial review proceedings where the petitioner would be asking the court to look at the legality, irrationality or impropriety of the decision by the Dispute Resolution’s Committee. No. This is a constitutional petition where the petitioner alleges breach and violation of his fundamental rights and freedoms, which falls squarely within the jurisdiction of this court and one of the remedies therefor under Article 23 is judicial review orders.
9.The assertion by the respondents that the petitioner withdrew his initial petition in view of a preliminary objection on jurisdiction, was not determined on the merits as observed by the court in its decision on costs of 9/6/2022 thus, “..In the circumstances, and to give effect to the principle of access to court and justice under Article 48 of the Constitution and Rule 26(2) of the Mutunga Rules and bearing in mind that there has not been a determination on the merits or on the Preliminary Objection to the Petition, the court considers that there should be a no order as to costs, so that each party bears its own costs.”
10.The sole issue for determination on the merits is where the reliefs sought in the petition should be granted.
11.The petitioner seeks to contest for the position of a member of County Assembly for Nyaki West Ward in Meru County, as an independent candidate in the forthcoming elections. The parties are in agreement that the petitioner duly complied with the constitutional and statutory requirements to run for that elective position. The petitioner alleges that he presented his clearance letters on 30/4/2022 to the office of the 2nd respondent, through an agent namely Kevin Jones Thuranira. The respondents however declined to gazette the petitioner for the reason that he had not notified them of his intention to vie by filing of the necessary documents.
12.In order to contest for the seat of Member of County Assembly, the Constitution sets the qualifications in Article 193 as follows: -
13.Article 38 of the Constitution provides as follows: -(1)Every citizen is free to make political choices, which includes the right—(a)to form, or participate in forming, a political party;(b)to participate in the activities of, or recruit members for, a political party; or(c)to campaign for a political party or cause.(2)Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—(a)any elective public body or office established under this Constitution; or(b)any office of any political party of which the citizen is a member.(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.”
14.Article 85 of the Constitution provides for eligibility to stand as an independent candidate as follows:
15.On their part, the respondents accuse the petitioner of flouting the provisions of section 33(1) of the Elections Act, 2011. That section provides for nomination of independent candidates as follows: “(1) A person qualifies to be nominated as an independent candidate for presidential, parliamentary and county elections for the purposes of Articles 97, 98, 137, 177 and 180 of the Constitution if that person— (a) has not been a member of any political party for at least three months preceding the date of the election; (b) has submitted to the Commission, at least sixty days before a general election, a duly filled nomination paper in such form as may be prescribed by the Commission; (c) has, at least ninety days before the date of a general election or at least twenty one days before the date appointed by the Commission as the nomination day for a by–election, submitted to the Commission the name and symbol that the person intends to use during the election. (d) is selected in the manner provided for in the Constitution and by this Act. (2) The Commission shall publish in the Gazette, the names of persons intending to contest in the election as independent candidates at least fourteen days before the nomination day.”
16.The petitioner submitted his application to the registrar of political parties on 21/4/2022 for clearance and confirmation as an independent candidate. The registrar of political parties duly notified him to collect his clearance letters as exhibited by annextures HMM1 and HMM2 in his supporting affidavit. He was unfortunately taken ill which prompted him to instruct an agent namely Kevin Jones Thuranira to collect the said clearance letters on his behalf and submit them to the 2nd respondent. The respondents insist that the petitioner could not be gazetted as he did not submit a clearance certificate from the Registrar of Political Parties and an intention to contest as required by Regulation 15 of the Elections (General) Regulations 2012. That Regulation provides certain requirements for independent candidates as follows: “A person who is a Kenyan citizen, and who intends to contest for an elective post as an independent candidate shall— (a) obtain and file with the Commission a clearance certificate from the Registrar of Political Parties certifying that the person has not been a member of any political party for at least three months immediately before the date of the election; and (b) file with the Commission a form of intention to contest, in the Form 11N.”
17.The petitioner alleges infringement of his fundamental rights under the Constitution whereas the respondents allege that the petitioner failed to fulfill the requirements set out in the Elections Act and Regulation 15 of the Elections (General) Regulations 2012.
18.Article 24 of the Constitution provides for the limitation of rights and fundamental freedoms as follows: “ (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: - (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose. (2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom: - (a) in the case of a provision enacted or amended on or after the limitation of rights and fundamental freedoms, effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. (3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this article have been satisfied. (4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance. (5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service: - (a) Article 31—Privacy; (b) Article 36—Freedom of association; (c) Article 37—Assembly, demonstration, picketing and petition; (d) Article 41—Labour relations; (e) Article 43—Economic and social rights; and (f) Article 49—Rights of arrested persons.”
19.According to the Constitution, a statute may limit a right or fundamental freedom provided that such limitation is reasonable and justifiable in an open and democratic society. It has not been demonstrated that the Election Act and regulations made thereunder are unconstitutional.
20.The court has seen the list of 500 hundred persons who appended their signatures in support of the petitioner’s candidature as a member of their County Assembly, Nyaki West Ward. If the petitioner was barred from running for the said elective seat, for want of notifying the 2nd respondent of his intentions to so vie, the same would have adverse effects on the representation of the people of Nyaki West Ward at the County Assembly level. It must be remembered that all sovereign power belongs to the people of Kenya and shall be exercised either directly or through their democratically elected representatives. The petitioner appears to have met the threshold for nomination.
21.The petitioner avers that he submitted the clearance letters to the 2nd respondent’s office on 30/5/2022, through an agent, who left them at the ground floor with the security guards. He avers that the operations of the 2nd respondent had been moved to the said floor due to the mass influx of candidates. The record is clear that the petitioner was hospitalized for sometime, thus curtailing his mobility. In a bid to comply with the strict timelines set by the Elections Act and Elections (General) Regulations, he authorized his agent namely Kevin Jones Thuranira to submit the clearance letters to the 2nd respondent’s offices situate at Anniversary Towers. According to the respondents, the leaving by the petitioner’s agent of the petitioner’s compliance documents with the guards at Anniversary Towers, did not amount to submission and filing with the 2nd respondent. It may be that the requirement to “file” the document under Regulation 15 calls for presentation at an office, registry or desk set up for that purpose with due acknowledgment of receipt of such filing.
22.However, in this case, the petitioner was subsequently issued with nomination papers, which was a preserve for prequalified candidates and he attended an invite only meeting held by the 1st Respondent, for prequalified candidates. The Court must find that the actions of the Respondents, in requiring the petitioner to collect 500 signatures for persons supporting his MCA candidature, issuing him with nomination papers, issuing him with clearance letters and inviting him to a meeting for prequalified candidates, created a legitimate expectation that he would be cleared by the respondents to vie. The petitioner relied on the case of Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others (2015) eKLR where the Supreme Court stated that:-
23.There was in the view of this court a representation made on the issuance of the nomination papers and invitation to candidate trainings and preparations for the qualified candidates that the petitioner would subject to meeting the threshold for such nomination be cleared to contest for the relevant office.
24.Accordingly, although the court finds that the presentation of the clearance certificate and Form 11N to security guards at IEBC offices did not amount to filing within the meaning of Regulation 15 of the General Regulations, subsequent events of issuance of nomination papers and invitation of the petitioner to training and preparation meetings for pre-qualified candidates created in the petitioner a legitimate expectation that he would on compliance with the nomination requirements be cleared. In addition, the Court, would in the circumstances of this case, where the petitioner explains his inability to personally attend to the filing of the necessary documents by reason of his ailment allow on the principle of Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others, supra, excuse the failure to file the necessary documents.
25.The mandate to clear candidates for nomination to contest in elections lies with the IEBC and the court may only interfere therewith if the IEBC fails to exercise that mandate or exercises it in a manner that infringes on the rights of the petitioner or otherwise contravenes the relevant provisions of the Constitution or statute, or where the exercise frustrates a valid legitimate expectation created by IEBC on any person. In the circumstances of this case, therefore, the court must initially defer to the IEBC’s consideration on the merit of the petitioner’s application nomination.
26.As the IEBC has not considered whether upon being given the nomination papers, the petitioner has complied with the constitutional and statutory requirements for nomination, the court will make an order requiring the Respondents to consider the petitioner’s application for nomination on the merits. What remains to be established after the quasi-judicial determination by the Respondent’s Dispute Resolution Committee that “the complainant complied with the constitutional and statutory requirement to stand for election as an independent candidate” is whether he has marshalled the necessary voters to support his nomination bid.
27.The court notes that the respondents have not yet printed ballot papers, or they would have said so, and thus they will not suffer any prejudice if the prayers sought by the petitioner are granted. The fear of floodgates being opened for other persons who failed to meet the deadlines set for compliance with various steps in the nomination exercise does not arise as this petition only involves the petitioner who has moved the court for orders suiting his case and for which the court makes specific reliefs on the merits and circumstances of this case, and do not affect persons not parties to this suit.
28.It is the respectful conclusion of this court that the constitutional right to offer oneself as a candidate under Article 38 of the Constitution is too important to be trumped by requirements of form and manner of notification by filing prescribed by Regulation 15 of the Elections (General) Regulations, 2012 in the Elections Act requiring the notification of the respondents of the candidate’s intention to vie in the Election by filing of the prescribed Form 11N.
29.First principles dictate that the idea of notification is for the administrative purposes of informing the IEBC that the particular candidate wishes to contest so that administrative arrangement may be made towards the nomination of the candidate. The fact of the candidate petitioner herein being given nomination forms and being invited for purposes of education on the electoral process is a demonstration that the object of the notification had been achieved. The Respondents cannot be allowed to rely on any want of form of delivery of the notice to defeat the constitutional right of the petitioner and the legitimate expectation created by the invitation to participate in the preparatory exercise of the IEBC.
30.Form 11N is not an end in and of itself. It serves the purpose of notification. Notice of the petitioner’s interest and intention to vie has already been given by the forms delivered by the petitioner’s agent to, and received by, security officers at the 2nd Respondent’s office allegedly on instructions of the 2nd Respondent, a fact which has not been satisfactorily shown to be untrue.
31.The IEBC’s counsel suggested that the nomination forms which the petitioner had, had not originated from the offices of the IEBC. They were not shown to be fake and it was burden of IEBC who alleged that they did not originate from their offices to prove the fact bearing in mind that the IEBC is only election agency mandated to run the elections. The allegations smack of an illegality in the procurement of the nomination forms the proof of which required cogent evidence from the IEBC as the party alleging it, in accordance with standard of balance of probability in case where fraud or serious crime is alleged on the principle in Re H & R Minors (1996) 1 All ER 1 (House of Lords).
32.In failing to consider the petitioner’s application for nomination on account of failure to file the necessary documents despite in the circumstances of this case of the legitimate expectation created by the issuance of the nomination papers predicated on information given in the said documents, the IEBC have breached the petitioner’s voting rights under Articles 38 and 193 of the Constitution and related rights.
33.The justice of the case appears to this court to require that the IEBC considers on the merits the nomination forms of the Petitioner on the basis of the legitimate expectation created by his being given the nomination papers and invitation to attend the preparation meetings and training for pre-qualified candidates. The Court will set the matter for mention for compliance and any final directions shortly after the conclusion of the consideration on the merits of the petitioner’s nomination by the IEBC.