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Matindi & 2 others v Independent Electoral and Boundaries Commission & 8 others; Commission on Administrative Justice & 4 others (Interested Parties) (Constitutional Petition E089 of 2022) [2022] KEHC 9763 (KLR) (Constitutional and Human Rights) (21 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 9763 (KLR)
Republic of Kenya
Constitutional Petition E089 of 2022
AC Mrima, J
July 21, 2022
Between
Eliudi Karanja Matindi
1st Petitioner
Bernard Saisi Marasa
2nd Petitioner
Kenya Diaspora Alliance
3rd Petitioner
and
Independent Electoral and Boundaries Commission
1st Respondent
Attorney-General
2nd Respondent
Wafula W. Chebukati
3rd Respondent
Juliana Whonge Cherera
4th Respondent
Francis Mathenge Wanderi
5th Respondent
Justus Abonyo Nyang’aya
6th Respondent
Irene Cherop Masit
7th Respondent
Abdi Yakub Guliye
8th Respondent
Boya Molu
9th Respondent
and
Commission on Administrative Justice
Interested Party
National Assembly of Kenya
Interested Party
Senate Parliament of Kenya
Interested Party
Kenya National Commission on Human Rights
Interested Party
Kenya Human Rights Commission
Interested Party
Voting within Kenya and the diaspora in respect of the presidential election has to be in accordance with the Kenyan time zone
The dispute before the court revolved around the right to be registered as a voter and the right to vote in the diaspora. The court held, among others, that the voting within Kenya and the diaspora in respect of the presidential election had to be on August 9, 2022 and in accordance with the Kenyan time. The court also held that the limitation of the voting times under regulation 66(3) of the Election (Voter Registration) Regulations was generally constitutional since the limitation was necessary to enable IEBC deliver a credible election and more so some countries in the diaspora were not in any way affected by that provision.
Constitutional Law - constitutionality of statutes - constitutionality of regulation 66(3) of the Election (Voter Registration) Regulation, 2012 - where regulation 66(3) required voting outside Kenya to be carried out between 6 am and 5 pm Kenyan time - whether the limitation of the voting times under regulation 66(3) of the Election (Voter Registration) Regulations, 2012 was unconstitutional - Constitution of Kenya, articles 19 and 20; Election (Voter Registration) Regulation, 2012, regulation 66(3).Constitutional Law - institution of a constitutional petition - exhaustion doctrine - what was the nature and the role of the exhaustion doctrine.Civil Practice and Procedure - orders - execution of orders - execution of orders of the Supreme Court - whether the filing of a fresh petition before the High Court was a way of executing a decision of the Supreme Court - Supreme Court Rules, 2020, rules 29 and 30.Civil Practice and procedure - sub judice - factors to consider when determining that a matter is sub judice - pleadings of the on-going proceedings - what was the effect of failure to produce pleadings of on-going proceedings where a party claimed that a matter was sub judice.Civil Practice and Procedure - contempt of court - forum to raise an issue of contempt of court - whether the issue of contempt of court could be raised in a fresh and separate proceeding from the one giving rise to the issue of contempt.Jurisdiction - jurisdictions of courts - jurisdiction to extend constitutional timelines - whether constitutional timelines could be extended by courts.
Brief facts
The petitioners were allegedly aggrieved by the failure by the 1st respondent, the Independent Electoral and Boundaries Commission (IEBC) together with the 3rd to 9th respondents (IEBC Commissioners) to put in place the necessary regulations and infrastructure to enable eligible Kenyan citizens residing outside Kenya to register as voters and to cast their votes by electronic means thereby violating their constitutional rights and fundamental freedoms. The petitioners contended that the IEBC had failed to implement its own policy on progressive registration of Kenya citizens residing outside of Kenya for the purposes of presidential elections and referenda. The petitioners took issue with constitutionality of regulation 39 and 39E of Elections (Registration of Voters) Regulations, 2012 (the Regulations) to the extent that it limited participation of Kenyan citizens residing outside Kenya and prisoners respectively to presidential elections and referenda only. In respect to voting time, the petitioners posited that regulation 66(3) of the Regulations was discriminatory for requiring voting outside Kenya to be carried out between the hours of 6 o’clock in the morning and 5 o’clock in the afternoon Kenyan time. It was their case that that the diaspora vote ought to be conducted between 06:00 Hours – 17:00Hours local time of the respective country. The petitioners thus sought for among others declarations that regulations 39, 39E and 66(3) of the Regulations were unconstitutional.
Issues
- Whether the limitation of the voting times under regulation 66(3) of the Election (Voter Registration) Regulation, 2012 which required voting outside Kenya to be carried out between 6 am and 5 pm Kenyan time was unconstitutional.
- Whether the filing of a fresh petition before the High Court was a way of executing a decision of the Supreme Court.
- What was the effect of failure to produce pleadings of on-going proceedings where a party claimed that a matter was sub judice?
- Whether constitutional timelines could be extended by courts.
- What was the nature and the role of the exhaustion doctrine?
- Whether the issue of contempt of court could be raised in a fresh and separate proceeding from the one giving rise to the issue of contempt.
Relevant provisions of the Law
Elections (Registration of Voters) Regulations, 2012 Regulation 39E - When prisoner may voteA prisoner may only vote in a presidential election and referendum.Regulation 66 - Polling Time(1) Subject to regulation 64, voting shall commence at 6 o’clock in the morning and end at 5 o’clock in the afternoon on the polling day.(2) Notwithstanding sub regulation (1), a person who is on a queue for the purposes of voting before 5 o’clock in the afternoon shall be allowed to vote despite the fact that the voting time may extend to after 5 o’clock.(3) The voting by Kenyan citizens residing outside Kenya shall be carried out during the Kenyan time specified in sub regulation (1).
Held
- Continuous voter registration was a process that preceded every general election. Its importance resided in the fact that it ultimately guaranteed every citizen the constitutional right to democratically elect their political leaders. Both the right to be registered as a voter and the right to vote were constitutionally provided for in article 38 of the Constitution of Kenya, 2010 (Constitution). Those rights accrued to every citizen irrespective of the country of residence, provided one had attained the age of 18 years, was of sound mind, had not been convicted of an election offence within five years preceding the elections date and was a duly registered voter.
- Jurisdiction was central in judicial proceedings such that a court acting without jurisdiction was acting in vain, all it engaged in was nullity. Indeed, so determinative was the issue of jurisdiction such that it could be raised at any stage of the proceedings. A court’s jurisdiction flowed from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It could not arrogate to itself jurisdiction exceeding that which was conferred upon it by law. Jurisdiction was conferred by law not through pleading and legal draftsmanship. It was both the substance of the claim and relief sought that determined the jurisdictional competence of a court.
- A party that successfully raised the plea of res-judicata rendered the court without any option but to down its tools. That could, however, be in respect to the entire matter or part thereof depending on the nature and the manner in which the plea affected the matter.
- The invitation by the petitioners to have a subsequent interpretation of regulation 39 of the Regulations) was a matter already adjudged. The instant court was barred by the doctrine of res-judicata following the decision of the Supreme Court in Petition No. 25 of 2014 Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR from entertaining the issue once again.
- Rule 30 of the Supreme Court Rules, 2020,was on the execution of the decisions of the Supreme Court by the High Court. Rule 30 was preceded by rule 29 which provided for decrees and orders. From rules 29 and 30, the law prescribed a specific manner in which the decisions of the Supreme Court were enforced by the High Court. The process did not include the filing of a fresh petition before the High Court in the guise of executing the decision of the Supreme Court.
- The plea of sub-judice was only raised by way of grounds of opposition. The alleged on-going pleadings in Petition No. 162 of 2019 Aloise Onyango Odhiambo v IEBC & Others as consolidated with Petition 375 of 2019 Wilson Kinyua v AG & Others were not produced before court. The court was at a loss as to whether there was really more than one suit over the same subject matter; that one suit was instituted before the other; that both suits were pending before courts of competent jurisdiction and whether the suits were between the same parties or their representatives. On that score, the plea of sub-judice could not be sustained. The jurisdiction of the instant court was not impugned.
- The impugned regulation 39E of the Regulations was not unconstitutional and full realization of the article 38 of the Constitution rights in respect of prisoners would be progressively realized and in line with the orders of the Supreme Court in Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others case.
- The conduct of elections in Kenya was a highly regulated one. Both the Constitution and various legislation guided the process. The Constitution dedicated article 86 to voting and it spelt out what was required of the IEBC in every electoral process. The polling day for the presidential election was constitutionally decreed. The IEBC in compliance with the Constitution issued a gazette notice proclaiming August 9, 2022 as the polling day for the presidential election in Kenya. It was not in contention that a day started at 0000 Hours and ended at 2400 Hours.
- Constitutional timelines could not be extended by any court. Whatever interpretation the court would come up with, such should not impugn the constitutionally-decreed polling day for the presidential election. In other words, the voting within Kenya and the diaspora in respect of the presidential election had to be on August 9, 2022 and in accordance with the Kenyan time. The Constitution did not provide for the time the voting would take place, but only the polling day. It was the Elections (General) Regulations which capped the voting time between 6 o’clock in the morning and 5 o’clock in the afternoon on the polling day.
- Article 86 of the Constitution ring-fenced the fact that the results of elections had to be promptly announced by the presiding officer at each polling station and that the results from the polling stations be openly and accurately collated and promptly announced by the returning officer. The requirement was aimed at enhancing the credibility of the elections. The polling time in the instant matter was provided for by subsidiary legislation. Being a statutory instrument, it had to be presumed that it was subjected to all the required legal parameters.
- The court remained alive to the fact that there were several countries in the Kenyan diaspora which were not affected by the application of regulation 66(3) of the Regulations. An example was a country within the East African Community. There were some countries in the diaspora which were adversely affected by the strict application of regulation 66(3). In such isolated cases, the application of regulation 66(3) should be in such a manner that the times could be adjusted as long as the voting remained within the polling day as decreed in article 136 of the Constitution.
- Whereas the voting times should remain to be between 6 o’clock in the morning and 5 o’clock in the afternoon of the polling day in Kenya, necessary adjustments ought to be put in place so as to take care of the voting times in the diaspora as long such measures did not go beyond the August 9, 2022 in Kenya. Such an approach would accord the IEBC an opportunity to adjust the voting times in the diaspora as long such adjustments remained within August 9, 2022 in Kenya. By doing so, IEBC would not have flouted the Constitution, on one hand, and the Kenyans in the diaspora would have a bit of some reprieve in mitigating the difficulties associated with the strict application of the impugned regulation 66(3) of the Regulations.
- The limitation of the voting times under regulation 66(3) of the Regulations was generally constitutional since the limitation was necessary to enable IEBC deliver a credible election and more so some countries in the diaspora were not in any way affected by that provision. The intended adjustments would be on a case by case basis and in doing so, IEBC would consider the different times in the respective countries in the diaspora and accordingly adjust the voting times as long as such measures remained within August 9, 2022 in Kenya. Regulation 66(3) was constitutional.
- The petitioner did not exhaust the processes laid down in the law prior to approaching the court by way of the petition seeking inter alia orders on access to information. The question of exhaustion of administrative remedies arose when a litigant, aggrieved by an agency's action, sought redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine served the purpose of ensuring that there was a postponement of judicial consideration of matters to ensure that a party was, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. That encouraged alternative dispute resolution mechanisms in line with article 159 of the Constitution.
- Where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law had to be strictly adhered to since there were good reasons for such special procedures. However, case law had developed a number of exceptions to the doctrine of exhaustion.
- The petitioner was under a legal duty to comply with the law. The 1st interested party had not even decided on whether the information sought by the petitioner was legally available to him. There was need for the petitioner to comply with the law. Once the provisions of the law were duly complied with and the petitioner was aggrieved, then there should be access to the High Court as per law provided. The request to the court to issue orders on the petitioner’s access to information was premature and the request was declined. The 1st respondent did not violate the petitioners’ right to access to information.
- The issue of contempt of court could only be properly so raised in those proceedings and not in a fresh and separate proceedings. The issue of the respondents having contravened Chapter Six of the Constitution without much ado the issue remained unproved. The petitioners had called for an order that the presidential elections scheduled for August 9, 2022 would have met the requirements of section 38A of the Elections Act. Such an order was prematurely sought since there was no dispute on section 38A in respect of the presidential election before the court for determination.
Petition partly allowed.
Orders
- The IEBC would, on a case by case basis and at its sole discretion, consider adjusting the voting times in some of the countries in the Kenyan diaspora such that the voting was conducted during day as long as such voting took place on August 9, 2022 in respect of the Kenyan standard time.
- The rest of the prayers in the petition were disallowed.
- No order as to cost.
Citations
Cases
- Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others ([2014] eKLR) — Mentioned
- Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 ((2020) eKLR) — Mentioned
- Dennis Gakuu Wahome -vs- The IEBC & Others (Constitutional Petition No. E321 of 2022, (unreported)) — Mentioned
- George Mike Wanjohi -vs- Steven Kariuki & 2 others ([2014] eKLR.) — Mentioned
- Independent Electoral and Boundaries Commission (IEBC) -vs- New Vision Kenya (NVK Mageuzi) & 4 others ([2015] eKLR) — Mentioned
- In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Supreme Court Application No. 2 of 2012) — Mentioned
- Jamal Salim v Yusuf Abdulahi Abdi & another ([2018] eKLR) — Followed
- John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others ([2021] eKLR) — Mentioned
- Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others ((2013) eKLR) — Mentioned
- Mike Mbuvi Sonko vs The Clerk, County Assembly of Nairobi City & 11 Others (Petition No. 11 (E008) of 2022) — Mentioned
- Okiya Omtatah Okoiti -vs- Attorney General & another ([2022] eKLR) — Mentioned
- Okiya Omtatah Okoiti vs. Public Service Commission & 73 Others (Constitutional Petitions No. 33 and 42 of 2018 (Consolidated) (unreported)) — Mentioned
- Orange Democratic Movement v Yusuf Ali Mohamed & 5 others ([2018] eKLR) — Followed
- Paragon Electronics Limited versus Njeri Kariuki ((2021) eKLR.) — Mentioned
- Rep -vs- IEBC Ex-parte Gladwel Otieno ((2017) eKLR) — Mentioned
- Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others ((2012) eKLR) — Followed
- Constitution of Kenya, 2010 — Article 19, 20, 24, 38, 83(3); 86;159; 201(d); 232(1)(b) — Interpreted
- Elections Act — Section 38A — Interpreted
- Elections (Registration of Voters) Regulations, (2012) — Regulation 39; 39E — Cited
- Interpretation And General Provisions Act — Section 56 — Interpreted
- Supreme Court Rules, (2020.) — Rule 29; 30 — Cited
- Access to Information Act
- Civil Procedure Act
Judgment
Introduction
1.Continuous voter registration is a process that precedes every General election. Its importance resides in the fact that it ultimately guarantees every citizen the constitutional right to democratically elect their political leaders.
2.Both the right to be a registered as a voter and the right to vote are constitutionally provided for in article 38 of the Constitution. These rights accrue to every citizen irrespective of the country of residence, provided one has attained the age of 18 years, is of sound mind, has not been convicted of an election offence within five years preceding the elections date and is a duly registered voter.
3.The dispute before this court revolves around the foregoing constitutional and statutory entitlement, that is the right to be registered as a voter and the right to vote.
4.Eliud Karanja Matindi and Dr Bernard Saisi Marasa, the 1st and 2nd petitioners herein are residents of Poole in the United Kingdom of Great Britain and Baltimore in the State of Maryland, United States of America respectively.
5.The 3rd petitioner, Kenya Diaspora Alliance – USA is described as a non-profit organization in the State of Delaware in the United States of America. It champions for the constitutional and statutory rights of Kenyan Citizens residing outside of Kenya.
6.For the purposes of this judgment, this court shall hereinafter and collectively refer to the rest of the countries in the world as ‘the Diaspora’).
7.The petitioners herein are allegedly aggrieved by the failure by the Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the IEBC’ or ‘the Commission’ or ‘the 1st respondent’) together with Wafula Chebukati, Juliana Whonge Cherera, Francis Mathenge Wanderi, Justus Abonyo Nyang’aya, Irene Cherop Masit, Abdi Yakub Guliye and Boya Molu, the 3rd to 9th respondents herein who are the current Commissioners of the IEBC (hereinafter collectively referred to as ‘the Commissioners’) to put in place the necessary regulations and infrastructure to enable eligible Kenyan citizens residing outside Kenya to register as voters and to cast their votes by electronic means thereby violating their constitutional rights and fundamental freedoms under articles 24, 38, 83(3), 201(d) and 232(1)(b) of the Constitution.
8.The petition is supported by the Kenya Human Rights Commission, the 5th interested party and is opposed by all the respondents as well as the Commission on Administrative Justice, the 1st interested party herein. The rest of the interested parties did not take part in the hearing of the petition subject of this judgment.
The Petition:
9.Through the petition dated March 4, 2022 and supported by the affidavit of Eliud Karanja Matindi deposed to on an even date, the petitioners contended that the IEBC had failed to implement its own policy on progressive registration of Kenya citizens residing outside of Kenya for the purposes of Presidential Elections and referenda.
10.It was the petitioners further case that IEBC had failed to ensure that its administrative arrangements for the registration of voters and conduct of elections are designed in a manner as to facilitate, and not deny, eligible Kenyan citizens residing outside Kenya the opportunity to exercise their right to vote or stand for election.
11.The petitioners further founded their case on IEBC’s failure to implement court orders in Okiya Omtatah Okoiti v Attorney General & another [2022] eKLR requiring it to ensure Kenyan citizens residing in twelve countries set out in Gazette Notice No 194 dated January 19, 2022, are given the opportunity to register using either their Kenyan passports or their original national identity cards for the fifteen (15) days of the registration.
12.The petitioners posited that despite IEBC’s policy dubbed, Diaspora Voter Registration Policy, developed pursuant to Supreme Court’s decision in Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR, which directed the IEBC to initiate "progressive voter registration" and put in place "infrastructure for comprehensive registration to progressively increase voter participation, implementation has not been effected.
13.It was the petitioner’s case that despite regulation 34 of Elections (Registration of Voters) Regulations, 2012 requiring registration of voters outside Kenya to be based on the presence of a Kenyan Embassy, High Commission or Consulate, the said provision does not require registration centres and polling stations to be physically located at such Embassy, High Commission or Consulate Building.
14.On the foregoing, the petitioners contended that the gazettement as registration centres and polling stations locations other than a Kenya Embassy, High Commission or Consulate was an abrogation by the Commission of the their duty under regulation 34 and article 83 of the Constitution to, facilitate administrative arrangements for the registration of voters and conduct of elections.
15.The petitioners further took issue with constitutionality of regulation 39 and 39E of Elections (Registration of Voters) Regulations, 2012 to the extent that it limits participation of Kenyan Citizens Residing Outside Kenya and Prisoners respectively to presidential elections and referenda only.
16.In respect to voting time, the petitioners posited that regulation 66(3) was discriminatory as per article 27 of the Constitution for requiring voting outside Kenya to be carried out between the hours of 6 o’clock in the morning and 5 o’clock in the afternoon Kenyan time. It was their case that that the diaspora vote ought to be conducted between 06:00 Hrs – 17:00 local time of the respective country to allow them exercise article 38 rights as read with article 138(3)(a).
17.The petitioners further contended that in violation of the Diaspora Voter Registration Policy, the Commission did not make any effort to extend continuous registration of voters to Kenyan citizens residing outside Kenya as part of the continuous registration of voters between the period of the October 4, 2021 to the November 2, 2021, as notified in the Kenya Gazette Notice No. 10442.
18.They asserted that it was a violation of their voting rights for the IEBC to make the statement on February 7, 2022 that though continuous voter registration would continue in each of the 290 constituencies and at all Huduma Centres in the country, there would be no continuous voter registration for eligible Kenyan citizens residing in the gazetted twelve foreign countries
19.It was their case further that the registration of diaspora voters, as set out in the Diaspora Voter Registration Policy, was to be carried out in eighteen Registration Centres spread over 12 countries but the Commission did not provide details of how the 12 Countries had been selected and arrived at and there was no information on whether those countries meeting the criteria had been excluded in the voter registration exercise, a violation of their righto information under article 35.
20.The petitioners asserted that the failure of IEBC’s to communicate the fact that Kenyans residing in Countries not gazetted as registration centres could travel to gazetted ones was both a violation of the right to information and in contempt of the orders in Okiya Omtatah Okoiti v Attorney General & another [2022] eKLR that suspended in the interim regulation 37 of Elections (Registration of Voters) Regulations, 2012.
21.In summary therefore, the petitioners posited the Commission’s failure to implement their Diaspora Voter Registration Policy, the limitation of the participation of Kenyan citizens residing outside the country and those in prisons in Kenya to voting in Presidential Elections only; the administrative barriers to the exercise of the right to vote, including casting of votes in Presidential Elections between 06:00 Hrs – 17:00 Hrs East African Time (EAT) station time, ran contrary to the constitutional edicts under article 24.
22.On the foregoing factual and legal matrix, the petitioners sought the following reliefs in the application: -1.Spent2.Spent3.Pending the hearing and determination of this application and petition, a conservatory order does issue staying and/or suspending implementation of regulation 66(3), Elections (General) Regulations, 2012, for the purposes of the Presidential Elections scheduled for August 9, 2022.4.Pending the hearing and determination of this application and petition, an order does issue requiring the 1st respondent to put in place all the required arrangements to ensure Kenyan citizens who have registered as voters in the six registration centres in Canada and in the United States of America, namely: i. Kenya Honorary Consulate, Toronto; ii. Kenya Honorary Consulate, Vancouver; iii. Kenya High Commission, Ottawa; iv. Kenya Consulate, Los Angeles; v. Kenya Consulate, New York and vi. Kenya Embassy, Washington DC for the purposes of the Presidential Elections scheduled for August 9, 2022, are able to cast their votes between the hours of 6 o’clock in the morning to 5 o’clock in the afternoon, local time at the location of their assigned polling station, and enjoy the full benefits of regulation 66(2), Elections (General Regulations, 2012.5.Upon the grant of the prayers above, this honourable court be pleased to issue such further directions or orders as may be necessary to give effect to the foregoing orders and/or favour the course of justice.6.The costs of this application be provided for.
23.In the main, the petitioners prayed for the following reliefs: -a.A declaration that regulation 39, Elections (Registration of Voters) Regulations, 2012, which provides that a Kenyan citizen residing outside Kenya and whose details are in the Register of Voters, shall only participate in a presidential election, is unconstitutional and, therefore, null and void, for violating article 138(3)(a) of the Constitution which provides that, to be entitled to vote in a presidential election, a person must also be registered as a voter for the purposes of parliamentary elections.b.A declaration that Kenyan citizens residing outside Kenya and who are in the Register of Voters are entitled to vote in presidential and parliamentary elections.c.A declaration that regulation 39E, Elections (Registration of Voters) Regulations, 2012, which restricts a Kenyan citizen who is a prisoner and whose details are in the Register of Voters, to only vote in a presidential election, is unconstitutional and, therefore, null and void, for violating article 138(3)(a) of the Constitution which provides that, to be entitled to vote in a presidential election, a person must also be registered as a voter for the purposes of parliamentary elections.d.A declaration that Kenyans who are in prison and in the Register of Voters are entitled to vote in presidential and parliamentary elections.e.A declaration that regulation 66(3), Elections (General) Regulations, 2012, which requires that, subject to sub-regulation (2), Kenyan citizens residing outside Kenya can only cast their votes in an election between 6 o’clock in the morning and 5 o’clock in the afternoon Kenyan time, irrespective of the local time at their gazetted polling station, is unconstitutional and, therefore, null and void, for violating the Constitution, including, articles 10, 19, 20, 21, 24, 27, 28, 38, 47, 83, 249 and 259.f.A declaration that Kenyan citizens residing outside Kenya and who are in the Register of Voters are entitled to vote, in elections or referenda conducted by the 1st respondent, between 6am and 5pm, local time at the location of their designated polling station, including equal entitlement to the full benefits of regulation 66(2), Elections (General) Regulations, 2012.g.A declaration that the respondents have failed to implement the Diaspora Voter Registration Policy adopted on 09.11.2015, which required them to register as voters’ eligible Kenyan citizens residing outside Kenya in every country where there was a Kenyan embassy, high commission or consulate and a minimum of 3,000 registered Kenyan citizens.h.A declaration that The respondents have failed to meet their obligations to ensure Kenyan citizens residing outside Kenya can fully exercise their constitutional rights as set out in article 38, as read together with articles 47 and 83 of the Constitution of Kenya.i.A declaration that The respondents’ actions have violated and threaten to violate the constitutional rights of Kenyan citizens residing outside the country who have registered as voters for the purpose of the Presidential Elections scheduled on 09.08.2022 as guaranteed by article 38, as read together with articles 47 and 83 and section 38A Elections Act, 2011.j.A declaration that by failing to put in place the necessary regulations and infrastructure to enable eligible Kenyan citizens residing outside Kenya to register as voters and cast their votes by electronic means, the respondents have violated the Constitution, including under articles 24, 38, 47, 83(3), 201(d) and 232(1)(b).k.A declaration that the respondents have violated the rights of eligible Kenyan citizens residing outside Kenya as guaranteed under the Constitution and applicable laws by failing to conduct continuous voter registration for Kenyan citizens residing outside Kenya, after the fresh Presidential elections in October 2017, including the nationwide voter registration exercise in October 2021, and after the voter registration exercise for eligible Kenyan citizens residing outside Kenya carried out between January 21, 2022 and (with necessary date adjustments), February 4, 2022.l.A declaration that the respondents violated the Constitution, including the oath of office by State officers, by disobeying lawful orders issued by Hon. Justice Anthony Mrima on January 31, 2022 in Okiya Omtatah Okoiti v Attorney General & another [2022] eKLR [Ruling No 1]., requiring them to ensure eligible Kenyan citizens in the gazetted twelve foreign countries could register as voters using either their Kenyan passports or their original Kenyan national identity cards for the full fifteen days set aside for the registration exercise.m.A declaration that the respondents violated the Constitution and other applicable laws by gazetting only twelve countries (and eighteen Registration Centres in the twelve countries), for the purposes of registering Kenyan citizens residing outside the country as voters for the purposes of the Presidential Elections scheduled for August 9, 2022, which gazetted Registration Centres will be the physical polling stations for the elections, including and, particularly article 83(3).n.A declaration that by failing to put in place the necessary regulations and infrastructure to enable eligible Kenyan citizens residing outside Kenya to register as voters and cast their votes by electronic means, the respondents have violated the Constitution, including under articles 24, 38, 83(3), 201(d) and 232(1)(b).o.A declaration that by their acts and omissions as commissioners of the 1st respondent, each of the 3rd to 9th respondents violated chapter six of the Constitution of Kenya, including their oath of office and articles 2(1), 3(1), 20(1) and 21(1).p.A declaration that the respondents violated article 35 of the Constitution, as read together with the Access to Information Act, 2016, by refusing to supply the information applied for by the 1st petitioner.q.A declaration that the respondents violated the Constitution and other laws by allowing persons resident in a country not gazetted for the purposes of registration of Kenyan citizens residing outside Kenya (Belgium) to travel and register as a voter in a country gazetted for the purposes of registration of Kenyan citizens residing outside Kenya (Germany).r.A declaration that the respondents should, jointly and severally, pay the petitioners’ costs for this suit
24.The petitioner further prayed for the following orders: -a.An oder quashing regulation 39, Elections (Registration of Voters) Regulations, 2012.b.An oder quashing regulation 39E, Elections (Registration of Voters) Regulations, 2012.c.An oder quashing regulation 66(3), Elections (General) Regulations, 2012.d.An oder requiring the respondents to carry out continuous voter registration for eligible Kenyan citizens residing outside Kenya as provided by law.e.An oder requiring that, for the Presidential Elections scheduled for August 9, 2022, the respondents shall meet the requirements of section 38A, Elections Act, 2011, in relation to the voting arrangements for Kenyan citizens residing out Kenya.f.An oder requiring that, within twelve (12) months of judgment or such other time as the court may deem appropriate, the respondents shall file with the court’s Registrar, the clerks of National Assembly of Kenya and the Senate of Kenya, their plans, including a time-table, on how they intend to ensure that eligible Kenyan citizens residing outside Kenya, will be able to fully exercise the right set out in article 38(3) of the Constitution, by date of the general elections scheduled after the ones on August 9, 2022, or such other sooner period as the court may decide.g.An order compelling the 1st respondent to publish all the information requested by the 1st petitioner which is still outstanding and has not been overtaken by events.h.An order compelling the respondents, jointly and severally, to pay the petitioners costs for this suit.i.Such other orders that this honourable court may deem appropriate, fit and just to meet the ends of justice and the requirements of the Constitution of Kenya 20 I 0.
The Submissions:
25.In further support of their case, the petitioners filed written submissions and a response to the 2nd respondents grounds of opposition both dated May 18, 2022. They also filed a response to the 1st, 3rd-9th respondent’s replying affidavit dated May 20, 2022.
26.In the written submissions, the petitioner pointed out the unconstitutionality of regulation 39 and 39e by stating that it is inconsistent with article 138(3)(a) of the Constitution for excluding citizens living in the diaspora and prisoners from participating in any other elections apart from presidential elections and referenda only.
27.It was further the petitioner’s case that the limitation by regulation 39 and 39e does not meet the tests under article 24 of the Constitution as they are unreasonable and unjustifiable in an open and democratic society based on human dignity, equality and freedom.
28.The petitioner further submitted that the regulation 39 and 39e was a violation of article 27 of the Constitution as they impose limitations in the enjoyment of the right under article 38, as read together with article 138(3)(a), of the Constitution.
29.With respect to voting time provided for under regulation 66, it was submitted that 6am to 5pm local voting time for citizens of the diaspora was unconstitutional for being irrational, impractical, excessively demanding on the citizens in violation of article 38 of the Constitution.
30.In reference to the Supreme Court decision in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the petitioners contended that all the voters of the diaspora had legitimate expectation that Diaspora Voter Registration Policy was going to be implemented since the apex court was express, clear and unambiguous, reasonable, and lawful in its decision.
31.To further assert entitlement to continuous voter registration the petitioner referred to the decision in Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others where it was observed as follows;
32.In their response to the 1st, 3rd -9th respondents’ replying affidavit the petitioner submitted that the Commission had an obligation to increase voter registration capacity under section 109(1)(r), Elections Act, 2011, regulations 60 and 90, Elections (General) Regulations, 2012 which empowers the 1st respondent to put in place measures including allowing voting by electronic means and other special voting arrangements for persons who, by reason of special need, are unable to access a polling station.
33.In its response to the 2nd respondent’s grounds of opposition, the petitioner stated that the petitioners had established a nexus between the constitutional provisions violated and the factual basis of their case.
34.In his oral submissions, the petitioner first drew the court’s attention to incidence of perjury by the respondents on the basis that they relied on documents which are different from those on the online platform.
35.On the substance of the petition, he reiterated that the petition was a quest for the implementation of continuous registration by IEBC as a policy.
36.It was his case that the process of registration of voters, according to the law, is a continuous one. To that end, he stated that the 12 diaspora countries listed to participate in voting must engage in continuous registration as the case is in Kenya.
37.He submitted that according to the law, the suspension of voter registration ought to be done 60 days prior to the elections date and as such, the suspension of registration on May 4, 2022 to March 13, 2023 through Gazette Notice No 4954 was without any basis in law.
38.In reference to the decision of the Supreme Court in Rep v IEBC ex-parte Gladwel Otieno (2017) eKLR where it was observed that IEBC was under an obligation to open the voter register for inspection, he challenged the refusal by the commission to open the register for that purpose. He submitted that the IEBC was not above the law.
39.In his rejoinder, the petitioner submitted that the provision in the audit was enacted in the year 2016 and that since that time, the IEBC has not taken any steps to reconcile any conflicts. It was his case that the IEBC cannot take it upon itself to suspend the legislation.
40.The petitioner further submitted that it was upon the IEBC to prove whether they have finalized voter registration and if not demonstrate to court how it cannot implement the law and Constitution.
41.Lastly, it was his case that the petition is to enforce the policy arising out of the Supreme Court decision, but not to relitigate settled issues. He claimed that the Judgments of the Supreme Court can be enforced by the High Court under the Supreme Court rules.
42.As the petition is supported by the 5th interested party, I will now consider its case.
The 5th Interested Party’s Case:
43.The 5th interested party, Kenya Human Rights Commission, supported the petition through the replying affidavit of its Executive Director, Davis Malombe, deposed to on May 25, 2022.
44.He deposed that in accordance to section 109(1)(a) & (b) of the Elections Act, the IEBC has and obligation to ensure progressive entitlement which must be a qualitative and quantitative in the realisation diaspora voter registration.
45.It was his case further that whereas there has been commendable improvement on the number of voters in the diaspora for the year 2017 as compared to 2022, it was done without appreciating the logical and practical methodology of voting or registering as voters, considering the great travelling distances in those countries to access a registration centre and the time differences between some of the seven (7) additional countries and the Republic of Kenya.
46.He deposed that the 14 days given to the Kenyans living in the diaspora to register as voters was disproportionately short as compared to what ordinary citizens living in the country were accorded.
47.On the foregoing, it was his case that the failure to provide nuanced modalities that considers the particularities of geographical size, residential location of majority of Kenyans residing in the Diaspora relative to the geographical location of the various registration centres, is the Commission’s failure.
48.He deposed that here is no reason why the Commission cannot designate additional areas as registration and voting areas other than in Kenyan Embassies, High Commissions or Consulates.
49.In reference to the time of voting he deposed that the strict interpretation of regulation 66 of the Election (Registration of Voters) Regulations 2012 will cause unnecessary hardship to Kenyans living in the diaspora, particularly to women, especially ones living in the United States of America and Canada.
50.Mr Malombe stated that all Kenyans including those in the diaspora should be able to vote in all elective positions an aspiration upheld by the Court of Appeal and affirmed by the Supreme Court in the case of Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR.
The Submissions
51.In highlighting its written submissions dated May 26, 2022, Mr Mureithi, counsel for the 5th interested party submitted that, under section 109 of the Elections Act, the IEBC has an obligation to provide procedure on diaspora listing and voting.
52.It was his case that the IEBC can amend its regulations to enhance voter registration in the diaspora. In reference to the decision of the Supreme Court in IEBC v New Vision(supra), he submitted that regulation 39 limiting voting to presidential candidates only had been overturned.
53.Counsel decried discrimination stating that the registration of voters in the diaspora took only 14 days despite abundance of technology and the Supreme Court decision which was rendered 7 years ago giving guidance to the IEBC on diaspora voting.
54.With respect to regulation 66 of the Elections Act on limitation of polling time, it was his case that in view of the time difference, voters, especially in America and Canada will be disadvantaged since they will be voting at night. He submitted that women will be worst affected as they cannot leave their children unattended while men proceed to vote.
55.He urged the court to allow the petition as it will not affect anything in the Elections other that accord opportunity to people in the Diaspora to vote.
56.I will now consider the responses to the petition.
The Responses to the Petition:
The 1st, 3rd to 9th Respondents’ Case:
57.The 1st, 3rd – 9th respondents opposed the petition through the replying affidavit of Chrispine Owiye, the Director and Legal Affairs of IEBC.
58.In opposition to the request to have the polling time adjusted for the citizens of the diaspora he deposed that it would be an initiation to adjust the constitutional timeline of second Tuesday in August, in every fifth year. He thus stated that regulation 66(3) of the Elections (General) Regulations 2012 is not untenable or unconstitutional.
59.On the foregoing he submitted that the petition has not established a prima-facie case and the petition will not be rendered nugatory since the prayers in the application and the petition are similar.
60.In respect of the main petition, it was his case that the petitioners were seeking to re-litigate and revive the issues of having all citizen living in the Diaspora vote in all elective positions and have electronic voting, all of which were heard and determined in Petition No 25 of 2014, Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR.
61.He deposed that the petition was res-judicata the foregoing decision and in any event, the petitioners had not demonstrated how failure to deploy electronic voting for the diaspora voters threatens to deny any of the diaspora votes or deny voters the right to vote or violates article 24, 38, 83(3), 201(d) and 232(1)(b) of the Constitution.
62.He deposed that the petition was an effort to enforce the foregoing Supreme Court decision to the extent that it seeks to question why the Commission gazetted only 12 Countries as registration/polling stations and that it seeks to have the commission file reports with the National Assembly and Senate on realization of right to vote, a jurisdiction not within the court.
63.He deposed further submitted that the Commission has effected the progressive voter registration for all Kenyans on the diaspora and has put in place infrastructure for comprehensive registration citizens living in the Diaspora as ordered in the Supreme Court.
64.It was his case that the Commission was not in disobedience of court orders in Okiya Omtata v Attorney General (2022) eKLR when it ended the diaspora voter registration on February 6, 2022.
65.On the foregoing, he stated that it is not correct that the commissioners violated chapter six of the Constitution.
66.With respect to constitutionality of regulation 39 and 39E of Election (Registration of Voters) he submitted that the right to vote is not an absolute. It can be limited due to the attendant logistical and financial implications of rolling out voting capacity in all elective positions for the voters.
67.Mr Owiye submitted that voting in both presidential and parliamentary elections or in all elections for diaspora and prisoners depend on, among others, the economic environment and allocation of resources. He stated that the petitioners had not demonstrated that the financial capacity to achieve the petitioners had the financial capacity to achieve the petitioners demands.
The submissions
68.In its written submissions dated May 25, 2022, counsel Mr Malonza, first rebutted the claim of perjury on Gazette Notices, he stated that he referred to two notices which are similar and that the Notice by IEBC is an abridged one as its only the relevant pages to the petition that is supplied.
69.The petitioner reiterated that the petition was res-judicata to the extent the petition it seeks to have diaspora Kenyans vote in both Presidential and Parliamentary elections (as they do in prayers 123(a),(b) and 124(a) of the petition); or to compel the IEBC to conduct “electronic voting” for diaspora Kenyan voters.
70.On continuous voter registration it was his submission that section 8A of the Elections Act allows audit to be conducted and voter registration cannot go on when an audit is being done. It was his case that the register audit is what led to suspension of registration of voters in the diaspora.
71.Counsel further stated that the requirement under regulation 39 as appreciated with the Supreme Court’s decision is that there Should be progressive realization of registration and voting at the diaSpora.
72.The foregoing, according to counsel, calls for measures which depend on the economy and to that end, it was his case that there is no evidence that all supportive measures are in place which the IEBC has refused to satisfy the Supreme Court decision.
73.It was his case that the petition was seeking to enforce the Judgment of the Supreme Court and order the IEBC to file annual returns to the National Assembly and The Senate, the very orders that were granted by the Supreme Court.
74.It was further his case that the petition was an attempt to question whether the IEBC has implemented the Supreme Court decision on diaspora’s voting policy, which according to counsel cannot be the subject of the petition since the Supreme Court has mechanisms to enforce its orders, not through this court.
75.It was prayed that the petaton be dismissed.
The 2nd Respondent’s case:
76.The 2nd respondent, the Attorney General opposed the petition through Grounds of opposition dated April 20, 2022.
77.It was its case that the petition raised political rights which could be subjected to reasonable limitation. It claimed that allowing prisoners and members of the diaspora to vote would violate the spirit and letter of article 86(1) of the Constitution, since the voters would not be voting in a specific constituency, county or ward of their residence.
78.It was further stated that the right of prisoners to vote is presently being adjudicated upon in Petition 162 of 2019 Aloise Onyango Odhiambo v IEBC & others as consolidated with Petition 375 of 2019 Wilson Kinyua v AG & others and deciding over the issue would lead to conflicting decisions.
79.On the aspect to voting time under regulation 66(3) of the Elections (General) Regulations 2012, it was its case that the prayer poses a risk to the integrity of the electoral process if allowed as it is of utmost necessity for the for the general election to be conducted within the constitutional and statutory timelines, being, the 2nd Tuesday of August every 5th year.
80.In the end the 2nd respondent stated that the petitioners had not indicated how the respondents has violated their constitutional rights and allowing the petition will be judicial overreach as the court will have usurped the legislative mandate of Parliament.
The Submissions
81.The 2nd respondent filed written submissions dated May 25, 2022. Its counsel, Miss Kiramana, first associated himself with the submissions of Mr Malonza and reiterated that the import of the Supreme Court decision is that diaspora voting is a gradual and progressive process.
82.She stated that nothing has changed since delivery of the Judgment to warrant institution of the petition.
83.She submitted that the in view of article83(2) of the Constitution, electoral process must be simple and transparent to that end, a voter can only vote in relation to a specific electoral unit.
84.It was her case that the foregoing is the basis for the position that Prisoners and Citizens living in the diaspora since Kenyans living in the Diaspora, just as those in various prisons, hail from different wards, constituencies and counties, and in the current situation in Kenya, it is not possible to have the infrastructure to facilitate the said voting for each of them.
85.It was its case that the limitation imposed by regulation 66(3) on right to vote is clear and specific and hence not inconsistent with article 24 of the Constitution.
86.On the contention regarding voting time, the 2nd respondent stated that under section 56 of the Interpretation and General Provisions Act, time as referred to in any written laws signify the standard time of Kenya.
87.It was her case that declaring the said regulations unconstitutional at this stage during an election year, would leave a lacuna with regard to enforcing the right of the Kenyans in the Diaspora to vote, which in turn would tarnish the integrity of the election in its entirety.
88.In the end, the 2nd respondent urged the court to dismiss the petition.
The 1st Interested Party’s case:
89.The Commission on Administrative Justice (hereinafter referred to as ‘the CAJ’) responded to the petition through the replying affidavit of Mercy Wambua, the Secretary, deposed to on May 9, 2022.
90.On the basis of CAJ’s mandate to investigate any conduct in the state of affairs or omission in public administration, she deposed that the petitioner made the application for request of information vide an email dated September 23, 2021 to the 1st respondent requesting for information including; policy informing planned voter registration, criteria applied to select each of the eleven countries; how many registration centres the 1st respondent intended to have in each of the eleven countries among others.
91.Mrs. Wambua deposed that upon failure by the 1st respondent to facilitate the foregoing, the 1st petitioner sought to the 1st interested party’s intervention through the email dated December 14, 2021.
92.It was her case that pursuant to its mandate, CAJ initiated an inquiry into the matter by writing to the 1st respondent though the letter dated January 17, 2022. It requested the 1st respondent to facilitate the 1st petitioner with the information he sought in line with section 9(4) of the Access to Information Act.
93.She deposed that the 1st respondent did not respond to the its letter of inquiry, however, CAJ, through its own inquiry learned that the 1st Respondent had shared the information on its website.
94.She deposed that the 1st respondent had proactively uploaded on its website ‘Voter Registration information in Diaspora’ on January 10, 2022 wherein it disclosed the criteria that was used to decide the number of voter registration centres by the 1st respondent and the criteria to map voter registration centres, the voter registration centres in the eleven selected countries, the requirements needed for voter registration and the provisional dates the 1st respondent had scheduled to carry out registration in each of the eleven countries.
95.It was however her case that CAJ’s efforts to trace the copy of the policy informing the voter registration exercise on the 1st respondent’s website was not fruitful to date.
96.She deposed in the course of conducting further review of the 1st petitioner’s case, the 1st petitioner instituted the instant petition.
97.On the foregoing, the 1st interested party urged court, in the circumstances of the case, to decide on the issue in the best interests of justice.
Issues for Determination
98.Having considered the pleadings, the dispositions and the parties’ submissions, the following issues emerges for determination namely: -i.Whether this court’s jurisdiction is ousted on account of the doctrines of res judicata and sub-judice.ii.In the event issue (i) above is answered in the negative, a consideration of the principles in constitutional and statutory interpretation.iii.The constitutionality of regulation 39E of the Elections (Registration of Voters) Regulations, 2012.iv.The constitutionality of regulation 66(3) Elections (General) Regulations, 2012.v.Whether the 1st respondent violated the petitioners’ right to access to information.
99.This court will hence deal with the issues in seriatim.
Analysis and Determinations:
The Constitution dedicates article 86 to ‘Voting’. It spells out what is required of the 1st respondent in every electoral process. It provides as follows: -
a. Whether this court’s jurisdiction is ousted on account of the doctrines of res-judicata and sub-judice:
100.The jurisdiction of this court in this matter has been impugned on two fronts. First, on the basis of the doctrine of res-judicata and, second, on the doctrine of sub-judice.
101.Speaking to the concept of jurisdiction, the Supreme Court in Petition No 11 (E008) of 2022 Hon Mike Mbuvi Sonko v The Clerk, County Assembly of Nairobi City & 11 others aptly captured the aspect of jurisdiction in the following words: -
102.Jurisdiction is, hence, so central in judicial proceedings such that a court acting without jurisdiction is acting in vain. All it engages in is nullity. (See the Court of Appeal in Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others (2013) eKLR).
103.Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No 103 of 2016 [2018] eKLR is relied upon.
104.On the source of a court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -
105.And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR, the Court of Appeal further stated: -
106.Returning back to the issue at hand, the jurisdictional issue herein bears two sub-issues. As said, they are the doctrine of res-judicata and the doctrine of sub-judice. I will deal with each sub-issue separately.
On the doctrine of res judicata:
107.A party that successfully raises the plea of res-judicata renders the court without any option but to down its tools. That may, however, be in respect to the entire matter or part thereof depending on the nature and the manner in which the plea affects the matter.
108.Going forward, it is necessary to consider the parameters of the doctrine.
109.In Nairobi High Court Constitutional Petition No E321 of 2022, Dennis Gakuu Wahome v The IEBC & others (unreported) this court, in light of various decisions, considered the doctrine of res-judicata as follows: -135.The doctrine of res judicata is not novel. Its genesis is in section 7 of the Civil Procedure Act, cap 21 of the Laws of Kenya which provides that: -136.The Supreme Court in a decision rendered on August 6, 2021 in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] eKLR comprehensively dealt with the different facets making up the doctrine of res judicata.137.In the first instance, the apex court framed the issues for determination as follows: -a)Did the High Court procedurally consider the plea of res judicata?b)Did the finding by the High Court on res judicata infringe on the Petitioner’s right to fair hearing condemning them unheard?c)Were the learned Judges of the Court of Appeal justified in holding that the doctrine of res judicata applied to the current case; was the Paluku case the same as the appellants’ herein?d)Is this doctrine of res judicata applicable to constitutional litigation and interpretation, just as in other criminal and civil litigation?e)If the doctrine of res judicata is applicable to constitutional matters with the rider that it should be invoked in constitutional litigation only in the rarest and clearest of cases, on whom lies the burden of proving such rarest and clearest of cases?f)What constitutes such “rarest and clearest” of cases?g)Who bears the costs of the suit.138.On the procedure for raising the plea of res judicata, the Supreme Court alluded to the position that the plea is anchored on evidential facts and that such facts ought to be properly raised in a matter. In that case, the plea of res judicata had been raised by way of grounds of opposition and in the replying affidavit.139.The court, in dismissing the argument that the issue was improperly raised before court, stated as follows: -(53)Instead, and contrary to the appellants submissions, the plea of res judicata was raised through both grounds of opposition and replying affidavits in response to the appellants application. it is also evident that through the replying affidavits of the 3rd and 4th respondents, evidence by way of the Judgment of JR No 130 of 2011 was introduced through an affidavit to bolster the plea of res judicata.(54)It is further evident that the appellants were not condemned unheard or shut out from the proceedings. The proceedings demonstrate that the court accorded the appellants the two justiciable elements of fair hearing: (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable.(55)This ground of appeal must therefore fail.140.On whether the doctrine of res judicata applies to constitutional petitions, the Supreme Court endeavoured an extensive discussion and comparative analysis in various jurisdictions. It also captured the various opposing schools of thought on the issue.141.In the end, the court found that the doctrine, rightly so, applies to constitutional petitions. This is what the court partly stated: -81.We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively………82.If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further article 50 on right to fair hearing and article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.
142.The apex court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The court stated as follows:(86)We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.
143.On the commonality of the parties, the court noted as follows: -(93)The commonality is that the appellants herein and the applicants in JR 130 of 2011 were persons, juridical and natural, engaged in the business of clearing and forwarding of goods for various importers of goods destined to the Democratic Republic of Congo. They have the same interests and therefore the raise the complaints regarding the two certificates, FERI & COD. The answer is in the affirmative and we find we cannot fault the High Court or the Court of Appeal for concluding as such.
144.In dealing with the contention as to whether the issues raised in the two suits therein were directly and substantially the same, the Supreme Court noted that the initial suit was instituted by way of a judicial review application whereas the subsequent suit was by way of a constitutional petition. The court also noted that the issues raised in the constitutional petition were more than those decided in the judicial review application.
145.The Supreme Court disagreed with the Court of Appeal and found that the doctrine was not applicable in the matter. The court held that: -(97)From the face of it, it would appear that the issues in the present suit and JR 130 of 2011 are directly and substantially the same. However, the appellants herein predicated their petition on inter alia grounds that the bilateral agreement should have been approved by Parliament in order to form party of Kenyan law and in failing to do so, the respondents contravened article 2. They further alleged that the respondents herein purported to usurp to the role of Parliament and in doing so contravened articles 94(5) and (6) of the Constitution. They further alleged that the FERI and COD certificates threatened to infringe their right to property under articles 40(1)(a) and (2)(a) when the respondents threatened to arbitrarily deprive them of their property. The court sitting in determination of a judicial review application did not have jurisdiction to render itself on these issues. We therefore find that the principle of res judicata was wrongly invoked on this ground. (emphasis added).
146.On the competency of the court deciding the matters in issue, the Supreme Court noted the close relationship between the issue as to whether the current suit had been decided by a competent court and whether the matter in dispute in the former suit between the parties was directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar.
147.The apex court had a lengthy discussion on the matter. It referred to several decisions and, in the end, rendered itself as follows: -[107]The court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the court can do when determining a constitutional petition. Further the court is further empowered to grant not just judicial review orders but any other relief is deems fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. This court in its decision in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (amicus curiae) [2021] eKLR went ahead to reaffirm use of structural interdicts and supervisory orders to redress the violation of a fundamental right in order to allow the development of court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.[108]We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.[109]The court in hearing a constitutional petition may very well arrive at the same conclusion as the court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the court will be playing fairly different roles.[110]We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion.
148.The Supreme Court also discussed two exceptions to the doctrine of res judicata. The court stated as follows: -(84)Just as the Court of Appeal in its impugned decision noted that rights keep on evolving, mutating, and assuming multifaceted dimensions it may be difficult to specify what is rarest and clearest. We however propose to set some parameters that a party seeking to have a court give an exemption to the application of the doctrine of res judicata. The first is where there is potential for substantial injustice if a court does not hear a constitutional matter or issue on its merits. It is our considered opinion that before a court can arrive at such a conclusion, it must examine the entirety of the circumstances as well address the factors for and against exercise of such discretionary power.(85)In the alternative a litigant must demonstrate special circumstances warranting the court to make an exception.
149.The Supreme Court had earlier expressed itself on the doctrine of res judicata in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it delimited the operation of the doctrine of res-judicata in the following terms;(317)The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st, 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.(318)This concept is incorporated in section 7 of the Civil Procedure Act (cap 21, Laws of Kenya) which prohibits a court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:(319)There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and another v The Attorney General and others, [2005] 1 EA 83, 89.(320)So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a court is essentially the same as another one already satisfactorily decided, before a competent court.(333)We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1st, 2nd and 3rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v Figliola [2011] 3 SCR 422, 438 (paragraph 28)).(334)Whatever mode the 1st, 2nd and 3rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v National Bank of Kenya Ltd & others, [2001] EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”(352)The Judicial Committee of the Privy Council, in Thomas v The Attorney-General of Trinidad and Tobago, [1991] LRC (Const) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & others v The State of UP & others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:(353)Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & another v Attorney General & 6 others, High Court Const. and Human Rights Division, Petition No 593 of 2013 [2014] eKLR, Lenaola J (at paragraph 64) thus stated:(354)On the basis of such principles evolved in case law, it is plain to us that the 1st, 2nd and 3rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.(355)However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st, 2nd and 3rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the court and have their grievance resolved on the basis of articles 22 and 23 of the Constitution.
150.The Court of Appeal in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR (which decision was overturned by the Supreme Court) also, and so correctly, discussed the doctrine of res judicata at length. The court stated in part as follows: -
110.Having endeavoured an elaborate discourse on the doctrine of res-judicata, I will now apply it to the dispute at hand.
111.The bar of res-judicata was raised by the 1st and 3rd to 9th respondents. It was based on the decision of the Supreme Court in Petition No 25 of 2014 Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others [2015] eKLR.
112.The said decision dealt with the rights of the members of the diaspora to be registered as voters and to vote.
113.As such, it is of essence to appreciate who the disputants were, subject matter of the case, the findings of superior courts and to what extent, if any, the issues in the matter are similar to the ones raised in the instant petition.
114.As can be discerned from the case, the four petitioners being New Vision Kenya (NVK Mageuzi), Kenya Diaspora Alliance, Dr Shem Odongo Ochuodho and Mr Gichane Muraguri sought before the High Court a declaration that Kenyan citizens in the diaspora bear a fundamental and inalienable right to be registered as voters; to vote; and to seek elective office pursuant to article 38(3)(a) and (b) of the Constitution.
115.The petitioners also prayed for an order requiring the IEBC to provide voter-registration, as well as satisfactory voting-mechanisms for Kenyans living in the diaspora.
116.The High Court dismissed the petition on the basis, among others, that the right to be registered as a voter and to vote is not absolute as it can be subjected to reasonable restrictions.
117.On appeal to the Court of Appeal, the learned judges partially allowed the petitioners’ case. Relevant to this case was the order directed at the IEBC to progressively set up voter-registration centres for Kenyans living in the diaspora, for all elective positions and to put in place an infrastructure for the registration of diaspora voters, in line with elections in Kenya.
118.Dissatisfied with the foregoing findings of the Court of Appeal, IEBC went on appeal to the Supreme Court seeking the interpretation and application of articles 83(2), 94(1) & (5), 82(1)(e) and 88(5) of the Constitution in relation to the right to vote.
119.Specifically, IEBC was aggrieved that the Court of Appeal’s order directing it to provide for voter-registration for Kenyans living in the diaspora for all elective positions was contrary to existing legislation and contrary to holistic interpretation of the Constitution, the Elections Act and the regulations therein.
120.In appreciating its constitutional interpretational role and the significance of the dispute on the entire Kenyan public in respect to electoral laws, the apex court, firstly stated that, Kenya is a republic founded upon democratic principles and the right to vote is a vital element in the laws pertaining to governance
121.Despite the foregoing acknowledgment on Kenya’s governance model, the learned judges remarked that voting rights are not inalienable rights.
122.On progressive registration of Kenyans living in the diaspora to vote, and whether such registration ought to attach to all elective positions, the apex court referred to its earlier decision in Supreme Court Application No 2 of 2012, In the Matter of the Principle of Gender Representation in the National Assembly and the Senate where it was observed as under: -
123.The learned Supreme Court Judges in following their earlier decision indeed agreed with the Court of Appeal and observed as follows: -(25)The Court of Appeal’s direction to the appellant, to ensure that registration of diaspora-Kenyans as voters “in all elective positions” is effected progressively, in our view, did no more than express the principle of incremental progress towards a full-scale attainment of the right to vote, locally and in the diaspora.(26)Consequently, we find little that is in departure from the terms of the Constitution, in the appellate court’s order which is essentially aspirational, and points to the possibility of Kenyans in the diaspora attaining the capacity to vote in elective positions other than in respect of the Presidency, or the referenda. It is not our apprehension, however, that it would be practical to decree a specific mode of exercise of diaspora voting rights in respect of “all elective positions” as from any named date.
124.While speaking to the need for the IEBC to place mechanisms and structures to progressively increase the number of Kenya citizens living in the diaspora to participate in elections, to ensure that voting at every election is simplified, bears assured transparency and takes into account the special needs of persons or groups with special needs of progressive realization, the Learned Judges affirmed the constitutionality of regulation 39 of the Elections (Registration of Voters) Regulations, 2012 in the following manner:(29)Is regulation 39 of the Elections (Registration of Voters) Regulations, 2012 untenable, in the circumstances? We are of the opinion that this regulation represents the appellant’s existing capacity to conduct diaspora voting, and is therefore not unreasonable. A few years ago, Kenyans in the diaspora could not actualize their right to vote; and while this right is currently limited to Presidential elections, and referenda, this limitation is inherently transient in nature. The intended object stands to be realized sooner or later, depending on developments in electronic technology, and on the due commitment of each of the relevant agencies of constitutional governance.
125.The Supreme Court remained alive to the fact that the civic rights in issue will be fully realized once the IEBC adopts electronic technology in managing and conducting elections, hence, the progressive realization of the rights.
126.In the end, the Supreme Court made the final following orders: -(i)The appeal is hereby dismissed and the Judgment of the Court of Appeal delivered on June 6, 2014 upheld subject to the following qualification to that court’s order No 3:(ii)The appeal is dismissed and the Judgment of the Court of Appeal of June 6, 2014 upheld subject to the following qualification to that court’s order No 4:(iii)The Registrar shall serve this Judgment and its orders upon the Speakers of the National Assembly and the Senate.(iv)Parties shall bear their own respective costs at the High Court, the Court of Appeal, and this court.
127.Coming back to the instant petition, the constitutionality of regulation 39 of the Elections (Registration of Voters) Regulations, 2012 is once again impugned by the petitioners on the basis that it limits their participation and that of other members of the diaspora to presidential elections only.
128.This court notes that the Supreme Court expressed itself comprehensively on the practicality of Kenyan citizens living in the diaspora to exercise the right to be registered as voters and to vote.
129.The court emphatically held that regulation 39 aforesaid cannot be held to be untenable since voting rights are not absolute.
130.Essentially, the Supreme Court categorically made the finding that voting rights have not arisen to the status of jus-cogens otherwise known as peremptory norms, from which no derogation is permitted. They may be limited in the manner and form permitted under article 24 of the Constitution.
131.Having so found, the invitation by the petitioners to have a subsequent interpretation of regulation 39 of Election (Voter Registration) Regulation, 2012 is, therefore, a matter already adjudged. This court is, hence, barred by the doctrine of res-judicata following the decision of the Supreme Court in Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others case (supra) from entertaining the issue once again.
132.In opposing the contention that the instant petition was caught up by the doctrine of res judicata, the petitioner averred that the petition did not seek to relitigate the issues already adjudged by the Supreme Court, but was enforcing the decision of the Supreme Court courtesy of rule 30 of the Supreme Court Rules, 2020.
133.This court has carefully considered the rule 30 aforesaid. It is on the execution of the decisions of the Supreme Court by the High Court.
134.Rule 30 is preceded by rule 29 which provides for decrees and orders. I will reproduce both rules verbatim for ease of this discussion.29.Decrees and orders:(1)Except for an advisory opinion, a decision of the court on any proceedings shall be in form of a decree or an order, as may be appropriate.(2)A decree of the court shall be as set out in Form C of the first schedule.(3)An order of the court shall be as set out in Form D of the first schedule.(4)Any party may, within fourteen days from the date of judgment or ruling, prepare a draft order and submit it for the approval of the other party and who shall, within seven days of receiving the draft order—(a)approve it, with or without any changes; or(b)reject it.(5)Where the parties approve the draft, it shall be submitted to the Registrar who shall, if satisfied that it is properly drawn, certify the order accordingly.(6)Where parties do not agree on the content of the order, any judge who sat at the hearing shall settle the terms of the order.30.Execution(1)The Registrar shall certify every decision of the court for transmission to the High Court for execution.(2)An order or a decree of the court may be enforced as if it were an order of the High Court.
135.From the above provisions, the law prescribes a specific manner in which the decisions of the Supreme Court are enforced by the High Court. The process does not include the filing of a fresh petition before the High Court in the guise of executing the decision of the Supreme Court.
136.The petitioner’s position does not, therefore, hold and is hereby rejected.
137.On the basis of the above finding, several prayers in the petition stand spent for they are caught up by the doctrine of res judicata.
138.The prayers are paragraph 123(a), (b), (g), (h), (i), (j), (k), (m), (n) and (q) as well as paragraph 124(a), (d) and (f) of the petition.
139.This court will now deal with the next sub-issue being the doctrine of sub-judice.
On the doctrine of Sub-Judice:
140.The Hon Attorney General raised the issue of the instant petition being sub-judice in its grounds of opposition.
141.It was contended that the issue of the constitutionality of regulation 39E of the Elections (Registration of Voters) Regulations, 2012 was currently the subject of Petition 162 of 2019 Aloise Onyango Odhiambo vs IEBC & others as consolidated with Petition No 375 of 2019 Wilson Kinyua v AG & others.
142.Having raised the issue vide grounds of opposition, this court’s mind has been drawn to the decision by the Supreme Court which decreed the manner in which issues based on evidence (say relating to res judicata and sub-judice) may be raised before court. That was in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] eKLR.
143.In that case, a plea of res judicata was raised by way of grounds of opposition and a replying affidavit. An objection was raised that the plea could not be raised by way of grounds of opposition since it called for proof of evidential facts.
144.The court rejected the argument for the reason that the plea had not been raised by way of grounds of opposition only, but the party had gone ahead to also raise it in the replying affidavit. Indeed, the court affirmed the position that evidential facts cannot be raised by way of grounds of opposition.
145.This is what the court stated: -151.On the proceDure for raising the plea of res judicata, the Supreme Court alluded to the position that the plea is anchored on evidential facts and that such facts ought to be properly raised in a matter. In that case, the plea of res judicata had been raised by way of grounds of opposition and in the replying affidavit.152.The court, in dismissing the argument that the issue was improperly raised before court, stated as follows: -(53)Instead, and contrary to the appellants submissions, the plea of res judicata was raised through both grounds of opposition and replying affidavits in response to the appellants application. It is also evident that through the replying affidavits of the 3rd and 4th respondents, evidence by way of the Judgment of JR No 130 of 2011 was introduced through an affidavit to bolster the plea of res judicata.
146.In the instant case, the plea of sub-judice was only raised by way of grounds of opposition. The alleged on-going pleadings in Petition No 162 of 2019 Aloise Onyango Odhiambo v IEBC & others as consolidated with petition 375 of 2019 Wilson Kinyua v AG & others were not produced before court. This court is now at a loss as to whether there is really more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and whether the suits are between the same parties or their representatives.
147.On that score, the plea of sub-judice cannot be sustained. It must fail and is hereby dismissed.
148.Having so found, and coming to an end of this issue, this court finds that the doctrine of res-judicata partly applies in the matter and that some parts of the petition have been found to be spent whereas the doctrine of sub-judice fails on account of lack of proof of the alleged existing petitions on the constitutionality of regulation 39E of the Elections (Registration of Voters) Regulations, 2012.
149.Having found that the jurisdiction of this court is not impugned, I will now deal with the next issue.
b. The Principles of Constitutional and Statutory Interpretation:
150.This court has been called upon to interpret the Constitution and to further interrogate the constitutionality of some impugned provisions of the law. As such, it is in order to briefly deal with the manner in which the Constitution and statutes ought to be interpreted.
151.This court dealt with this subject recently in Nairobi High Court Constitutional Petitions No 33 and 42 of 2018 (Consolidated) Okiya Omtatah Okoiti v Public Service Commission & 73 others (unreported). The court rendered itself as follows: -
152.With such a background, the court will now deal with the rest of the issues.
c. The Constitutionality of Regulation 39E of the Elections (Registration of Voters) Regulations, 2012:
153.Closely related to the aspect of the constitutionality of regulation 39 of the Elections (Registration of Voters) Regulations, 2012 which has already been captured in the first issue is the contest on constitutionality of regulation 39E of the Elections (Voter Registration) Regulations. The regulation relates to the rights of prisoners to vote.
154.It states as follows: -39E.When prisoner may vote:
155.The superior courts in the Independent Electoral and Boundaries Commission (IEBC) v New Vision Kenya (NVK Mageuzi) & 4 others case (supra) running from the High Court through to the Supreme Court agonized the requirement in regulation 59(4) of the Election (General) Regulations, 2012 which provides that ‘…. No person shall vote in a polling station other than that in respect of which that person is registered to vote.’
156.The fact that a registered voter is required to be physically present in a polling station where the person was registered as a voter to be able to vote in the rest of the elections (save for presidential elections) was traced to the manual manner in which elections are conducted in Kenya.
157.It was on that basis that the Supreme Court agreed with the Court of Appeal that such an impediment called for the use of electronic technology in elections. The court declined to render regulation 39 of the Elections (Voter Registration) Regulations, 2012 unconstitutional and urged IEBC to ensure that there was the progressive realisation of the right for Kenyan citizens in the diaspora to participate in all elections.
158.The same reasoning and basis, therefore, catches up with regulation 39E of the Elections (Voter Registration) Regulations, 2012.
159.To that end, this court finds that the impugned regulation is not unconstitutional and that full realization of the article 38 rights in respect of prisoners shall be progressively realized and in line with the orders of the Supreme Court in Independent Electoral and Boundaries Commission (IEBC) -vs- New Vision Kenya (NVK Mageuzi) & 4 others case (supra).
d. The Constitutionality of Regulation 66(3) of the Elections (General) Regulations, 2012:
160.The petitioners contested the constitutionality of polling time as stipulated in regulation 66(3) of the Elections (General) Regulations, 2012 on the basis that it imposes a discriminatory fiat upon Kenyan citizens in the diaspora.
161.It is their case that the Kenyan voting time in other diaspora countries mean an overnight exercise thus prejudicing participation of voting especially among women with young families who cannot leave children unattended.
162.Regulation 66 of the Elections (General) Regulations, 2012 provides as follows: -
163.The conduct of elections in Kenya is a highly regulated one. Both the Constitution and various legislation guide the process.
PARA 164.
165.Further to the foregoing, the polling day for the presidential election is constitutionally decreed. Article 136(2)(a) of the Constitution provides as follows: -
166.The IEBC in compliance with the Constitution issued a Gazette Notice proclaiming the 9th August, 2022 as the polling day for the presidential election in Kenya. That position is not challenged. It is also not in contention that a day starts at 0000 Hours and ends at 2400 Hours.
167.As the issue of the polling day derives from the Constitution, the position that constitutional timelines cannot be extended by any court is a well settled principle. That was affirmed by the Supreme Court in Civil Application No 6 of 2014 George Mike Wanjohi v Steven Kariuki & 2 others [2014] eKLR. In the case, the court was confronted with the question as to whether it could stop the constitutionally triggered timeline under article 101(4) of the Constitution which made it a requirement that a by-election shall be held within 90 days of the occurrence of a vacancy in the office of a member of National Assembly elected under article 97(1)(a) or (b) or of the Senate elected under article 98(a). In making the finding that constitutional timelines must be kept sacred, the Learned Judges made the following finding: -(45)Consequently, any statutory process or act done ultra vires the provisions of the the Constitution, this court will not hesitate to declare them void. Hence, a stay order will not be tantamount to stopping a constitutional process. We hasten to add that what the court cannot do is to extend the 90 days period within which the election should be held. That period is sacred as it is provided for in the the Constitution and even this court, a creature of the the Constitution, cannot extend it.
168.In this case, therefore, whatever interpretation this court will come up with, such must not impugn the constitutionally-decreed polling day for the presidential election. In other words, the voting within Kenya and the diaspora in respect of the presidential election must be on the August 9, 2022 and in accordance with the Kenyan time.
169.The The Constitution does not provide for the time the voting will take place, but only the polling day. It is the Elections (General) Regulations which capped the voting time between 6 o’clock in the morning and 5 o’clock in the afternoon on the polling day. It is that capping of the polling time that is challenged under this issue.
170.Article 86 of the the Constitution ring-fences the fact that the results of elections must be promptly announced by the presiding officer at each polling station and that the results from the polling stations be openly and accurately collated and promptly announced by the returning officer. The requirement is aimed at enhancing the credibility of the elections.
171.This court is aware of the provisions of section 56 of the Interpretation and General Provisions Act, cap 2 of the Laws of Kenya which for time in the following manner: -
172.The polling time in this matter is provided for by subsidiary legislation. Being a statutory instrument, it must be presumed that it was subjected to all the required legal parameters.
173.The concern raised by the petitioners and supported by the 5th interested party is a serious one. It goes to the manner in which a registered voter exercises the political rights under article 38 of the Constitution which is part of the Bill of Rights.
174.Article 20 of Constitution calls upon courts while applying any provision of the Bill of Rights to adopt an interpretation that most favours the enforcement of a right or fundamental freedom. It also calls for an interpretation that promotes the values that underlie an open and democratic society based on human dignity, equality, equity, freedom as well as the spirit, purport and objects of the Bill of Rights.
175.Article 19 of the Constitution provides the nature of the Bill of Rights to be an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. It further gives the purpose of recognising and protecting human rights and fundamental freedoms as to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
176.It is on such basis that article 19 of the Constitution further provides that the rights and fundamental freedoms in the Bill of Rights belong to each individual and are not granted by the State and that they do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Constitution.
177.The Bill of Rights are further ring-fenced to be subject only to the limitations contemplated in the Constitution.
178.Bearing in mind the duty of this court to protect the Bill of Rights and the need to apply a holistic interpretation of the Constitution, this court remains alive to the fact that there are several countries in the Kenyan diaspora which are not affected by the application of regulation 66(3) of the Elections (General) Regulations, 2012. An example is a country within the East African Community.
179.There is also truth in the fact there are some countries in the diaspora which are adversely affected by the strict application of regulation 66(3) of the Elections (General) Regulations, 2012. In such isolated cases, the application of regulation 66(3) of the Elections (General) Regulations, 2012 should be in such a manner that the times may be adjusted as long as the voting remains within the polling day as decreed in article 136 of the Constitution. It, therefore, means that whereas the voting times shall remain to be between 6 o’clock in the morning and 5 o’clock in the afternoon of the polling day in Kenya, necessary adjustments ought to be put in place so as to take care of the voting times in the diaspora as long such measures do not go beyond the August 9, 2022 in Kenya.
180.This court believes that such an approach will accord the IEBC an opportunity to adjust the voting times in the diaspora as long such adjustments remain within the August 9, 2022 in Kenya. By doing so, IEBC will not have flouted the Constitution, on one hand, and the Kenyans in the diaspora may have a bit of some reprieve in mitigating the difficulties associated with the strict application of the impugned regulation 66(3) of the Elections (General) Regulations, 2012.
181.Having said so, it, therefore, turns out that the limitation of the voting times under regulation 66(3) of the Elections (General) Regulations, 2012 is generally constitutional since the limitation is necessary to enable IEBC deliver a credible election and more so some countries in the diaspora are not in any way affected by the said provision.
182.What, therefore, comes out is that the intended adjustments shall be on a case by case basis and in doing so, IEBC shall consider the different times in the respective countries in the diaspora and accordingly adjust the voting times as long as such measures remain within the August 9, 2022 in Kenya.
183.With the foregoing, this court returns the verdict that the regulation 66(3) of the Elections (General) Regulations, 2012 is constitutional.
SUBDIVISION - e. Whether the 1st Respondent violated the Petitioners’ right to access to information:
184.This court has carefully perused the parties’ dispositions on this issue.
185.This court discussed the right of access to information and the attendant limitations at length in Nairobi High Court Constitutional Petition No 412 of 2019 Paragon Electronics Limited versus Njeri Kariuki (2021) eKLR.
186.In this matter, the averments by the petitioner that he sought for information from the IEBC in vain were countered by both the IEBC and the Commission on Administrative Justice, the 1st interested party.
187.Having addressed its mind to the issue, this court finds that the petitioner did not exhaust the processes laid down in the law prior to approaching this court by way of the petition seeking inter alia orders on access to information.
188.In making that finding, this court refers to a decision of a 5 Judge Bench on the doctrine of exhaustion. That was in Mombasa High Court Constitutional Petition No 159 of 2018 consolidated with Constitutional Petition No 201 of 2019 (2020) eKLR. The court stated as follows: -
189.The court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
190.The petitioner is, therefore, under a legal duty to comply with the law. The 1st interested party has not even decided on whether the information sought by the petitioner is legally available to him.
191.There is need for the petitioner to comply with the law. Once the provisions of the law are duly complied with and the petitioner is still aggrieved, then there shall be access to the High Court as per law provides.
192.In the meantime, the request to this court to issue orders on the petitioner’s access to information is premature and the request is declined.
193.In the end, this court finds that the 1st respondent did not violate the petitioners’ right to access to information.
Other issues raised by the petitioners:
194.The petitioners have also raised some three issues in their pleading and which issues must be addressed. One of them is the prayer for a declaration and an order that the respondents wilfully disobeyed lawful orders of the High Court in Okiya Omtatah Okoiti v Attorney General & another (2022) eKLR.
195.The precise response thereto is that the issue of contempt of court can only be properly so raised in those proceedings and not in a fresh and separate proceedings.
196.There is also the issue of the respondents having contravened chapter six of the Constitution. Without much ado, and in view of the foregoing discussion, the issue remains unproved.
197.The petitioners have also called for an order that the presidential elections scheduled for the August 9, 2022 shall meet the requirements of section 38A of the Elections Act.
198.Such an order is prematurely sought since currently there is no dispute on the said section 38A of the Elections Act in respect of the presidential election before this court for determination.
Disposition:
199.Flowing from the foregoing, it can be deduced that, by and large, the petition is unmerited save for the consideration on a case by case basis to be made by the IEBC in respect of the voting times in some countries in the diaspora.
200.Consequently, the following final orders do hereby issue: -a.The Independent Electoral and Boundaries Commission shall, on a case by case basis and at its sole discretion, consider adjusting the voting times in some of the countries in the Kenyan diaspora such that the voting is conducted during day as long as such voting takes place on the August 9, 2022 in respect of the Kenyan standard time.b.The rest of the prayers in the petition are disallowed.c.There shall be no order as to costs as the matter is a public interest litigation.
Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JULY, 2022.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:The Petitioners, in persons.Mr. Malonza, Learned Counsel for the 1st, 3rd to 9th Respondents.Miss. Kiramana, Learned Counsel for the 2nd Respondent.Miss. Musembi, Learned Counsel for the 1st Interested Party.Mrs. Muriithi, Learned Counsel for the 5th Interested Party.Faustine Rotich – Court Assistant.
