1.The Constitution of Kenya 2010 is rated amongst the most progressive Constitutions in the world. It instils values and principles of good governance. It commands Principles of equality & equity amongst all citizens. It outlaws discrimination and provides where necessary for affirmative action, a positive principle meant to uplift and improve the of group of persons who have been historical marginalized.
2.The Constitution equally makes elaborate procedures of how the Electoral systems and processes are to be governed. It prescribes for statues that sets rules and regulations from the nomination of candidates to the culmination of elections, how pre- and post-elections disputes are to be conducted.
3.This court has been called upon to consider and review a decision arrived at by the Dispute Resolution Committee of the 1st Respondent the Independent Electoral and Boundaries Commission in a pre- election dispute. It is against the above background that this Court will Consider the matter before it.
4.On the 4th of June 2022 the 1st Respondent, Returning Officer Wajir Constituency upon receipt of documents for purposes of clearance for nomination cleared the Petitioner, Asha Abdullahi Jubase a political party nominee to vie for the position of Member of County Assembly for the Habaswein Ward in Wajir South Constituency.
5.Abdirazak Osman, (Complainant) thereafter filed a complaint with the Dispute Resolution Committee(DRC) of the 1st Respondent, being Complaint No. 137 of 2022 against the Returning Officer, Wajir Constituency and the Petitioner challenging the clearance of the Petitioner (who was then 2nd Respondent) to run for the seat of Member of County Assembly for Habaswein Ward, Wajir South Constituency on Umoja Summit Party.
6.The basis of the allegation before the DRC was that the nomination of the Petitioner was irregular as she had not resign from public service in accordance with Section 43(5) of the Election Act at the point she sought for clearance from the IEBC..
7.The complaint went through the hearing process, and at the point of delivery of the committee’s ruling slated for 17th June 2022 the complainant’s counsel sought for more time to file fresh evidence that they wished to produce. Counsel made an oral application.
8.DRC adjourned the matter on account of that application and received further evidence. It thereafter slated the ruling for 20th June 2022 on which day counsel for the complainant filed a notice of withdrawal of the complaint, which in essence arrested the decision of DRC.
9.Despite the above scenario DRC delivered a ruling on the 23rd of June, 2022, wherein the DRC accepted the withdrawal of the complaint and rightly taking note that the withdrawal was filed under the wrong order of the Civil Procedure Rules, being Order 25 Rule 1 as the matter had been set for hearing and awaited their decision and that the withdrawal ought to have been under Order 25 Rule 2.
10.The DRC in allowing the withdrawal considered that sub Rule 2 of the Order allows court to permit withdrawal upon such terms as to costs, the filing of any other suit, and otherwise is just.
11.The DRC having allowed the withdrawal and armed with the “powers” to make or give such other terms as are just, arrived at the following decision;
12.Based on the above findings the committee allowed withdrawal with the following (“terms”) ordersa)The decision of the Returning Officer, Wajir South Constituency clearing and registering the 2nd Respondent, Asha Abdullahi Jubase, for nomination to vie for the position of Member of County Assembly in Habaswein Ward, Wajir South Constituency, Wajir County is hereby revoked.b)The Returning Officer, Wajir South Constituency is hereby directed to de-register the 2nd Respondent, Asha Abdullahi Jubase, herein as a candidate for nomination to the position of Member of County Assembly, Wajir County immediately and in any event not later than 48 hours from the date of issuance of this decision.c)Order (b) herein notwithstanding, a declaration does and is hereby issued that the 2nd Respondent, Asha Abdullahi Jubase, is not and shall not be gazette by the Independent Electoral & Boundaries Commission as a candidate to vie for the position of Member of County Assembly in Habaswein Ward, Wajir South Constituency.d)No order as to costs.
13.It is the said “terms” or call them orders of DRC that triggered the Constitutional Petition now before this court by Asha Abdullahi Jubase, dated 24th June 2022 where she cites manifest illegal, unlawful, unreasonable, irrational, illogical and unjustifiable and violation of Articles 2(1) 5, 6, 3(1), 10(1), 12(b) (c), 20(1) & (2), 22(1) & (3), 22(1) & (2), 23(3), 27(1) (2), 4&6, 28, 38(2) 9A), 3(C), 47(1) & (2), 54(1) (a), 56(b), 193, 165 (3) (b) and 260 of The Constitution 2010
14.It is the Petitioner’s case that the decision made by the DRC of the 1st Respondent constitutes an illegal exercise of discretion based on unlawful collusion and/or pressure from third parties contrary to statute, public policy and the law.
15.Further the said decision lacked professional objectivity to act, and demonstrated Wednesbury unreasonableness, irrationality, impropriety, bad faith and improper motive.And that the decision was manifestly unfair, unjust, arbitrary, and punitive.
16.It is further urged by the Petitioner that with the withdrawal the Complaint the committee seized to have jurisdiction and the orders issued were null and void ab initio.
17.The Petitioner therefore seeks for remedies as follows; -i.An Order of Certiorariagainst the Respondents quashing the decision of the Dispute Resolution Committee to revoke the decision of the Returning Officer, Wajir South Constituency clearing and registering the Petitioner for nomination to vie for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party.ii.An Orderof Certiorariagainst the Respondents quashing the decision of the Dispute Resolution Committee to de-register the Petitioner as a candidate for nomination for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party within 48 hours.iii.An Order of Mandamuscompelling the Respondents to accept the withdrawal of the complaint lodged by the complainant on 22nd June 2022.iv.An Order of Mandamuscompelling the Respondents to gazette the Petitioner as a candidate for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party.v.An Order to compel IEBC to process the Petitioners application and include her in the ballot.vi.Any other orders the Honourable Court will deem fit to Grantvii.Costs of this petition with interest to be awarded to the Petitioner.
18.The Petition was opposed by the 1st Respondent, the IEBC by way of a replying affidavit. The Chairman of IEBC Mr. Wafula Wanyonyi Chebukati though sued as the 2nd Respondent did not enter appearance.
19.Mr. Chrispine Owiye, the Director Legal and Public Affairs of the 1st Respondent deposed in his affidavit dated 13th July 2022 that the 1st Respondent received a complaint from Abdirizak Osman against a Returning Officer, Wajir South Constituency & Asha Abdullahi Jubase the Petitioner wherein the complainant challenged the clearance of the Petitioner to run for the position of Member of County Assembly in Habaswein Ward, Wajir South Constituency under Umoja Summit Party.
20.Further, he deposed that the complaint received was due to alleged irregular nomination since the Petitioner had not resigned from public service in line with section 43(5) of the Election Act.
21.He further stated, that though the complaint was withdrawn the committee rightly and legally elected to continue with the complaint as it deemed the withdrawal not only as being mischievous but also an abuse of the committee’s processes and resolutions. The Committee looked at the evidence adduced and verified the evidence in its possession further and deemed the withdrawal of the complaint as a collusion between the parties and an attempt to hoodwink the Committee and an invitation for the committee to disregard crucial issues raised.
22.He further averred that Order 25 rule (2) (2) of the Civil Procedure allowed the Committee to set terms for the withdrawal which terms the Committee considers just and applicable in the circumstances to meet the ends of justice.
23.Further he contended that the complaint had laid rebuttal evidence regarding the suitability of the Petitioner to run for the position and touched a requirement and the said evidence on record has not been rebutted as the Petitioner remains an employee of Wajir South National Government Constituency Development Committee Fund.
24.The matter before this court proceeded by way of submissions. Due to the urgency involved the Court directed that the interlocutory application and the Petition be heard together.
25.Submissions were presented orally by both Dr. Khaminwa and Mr. Munyambu.
26.Mr. Munyambu who started of the Petitioner’s submission informed the Court that the DRC at the point of withdrawal made indications that their arrested decision would have been in favour of the Petitioner.
27.He informed the court further that the first decision having been arrested the DRC went ahead to deliver a 2nd decision. He went on to submit that withdrawal meant the Complaint came to an end. The Complainant ceased being one and the DRC ceased to have jurisdiction over the complaint, it became functus officio unless another fresh complaint was instituted and any decision that they arrived at after the withdrawal was null and void abi nitio. Counsel referred to the case of Raisa Sultana Begam v Abdul Qadir & Others, Nguruman Ltd vs Shompole Group Ranch & Another  eKLR.
28.Further he urged that the Petitioner is a young woman who ought to be given an opportunity to represent the Wajir people in accordance with Article 27 of the Constitution.
29.He urged the court to grant the orders sought as Article 23 of the Constitution empowers the Court to issue the orders sought.
The Respondent’s Submissions
30.The Respondent’s Counsel filed written submissions and highlighted the same at the time of hearing. Counsel identified three issues for determination.(a)Whether the decision can be rendered where a complaint has been withdrawn.(b)Whether the Petitioner could legally be cleared to run for the position of Member of County Assembly.(c)What are the appropriate orders to be issued by the court.
31.Counsel relied on case of Nicholas Kiptoo Arap Korir Salat Vs IEBC & 7 Others Supreme Court Application No. 16 of 2014 to urge that the committee was legally right in allowing the withdrawal of the complaint and further imposing such terms as are necessary in the circumstances.
32.In answer to the second issue whether the Petitioner could be cleared to vie it was contended that the withdrawal was mischievous, an abuse of the committee’s process and resources as the complainant had placed evidence before the committee that disqualified the Petitioner to vie under Section 43(5) of the Evidence Act.
34.The court was urged to dismiss the Petition for lack of merit.
Analysis and Determination.
35.Having carefully considered the Petition, the Application, the Affidavits on record, submissions and case law cited the court is of the view that the issues for determination are;i.The fate of a suit where a notice of withdrawal is filed; can a decision be rendered, or orders be issued therein after such withdrawal ?ii.Whether the court can grant the orders of certiorari and mandamus against the decision of the Dispute Resolution Mechanisms as sought?iii.Whether the court can compel the 1st Respondents to gazette the Petitioner as a candidate for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party and to ensure the Petitioner’s name is in the ballot paper in the circumstances of the case.
36.Article 22(1) of the Constitution as read with Article 165(3) (b) & (6) gives Jurisdiction to the High Court to determine issues before it. Parties seem to agree on the Jurisdiction of the court on this aspect.Article 22 (1) of the Constitution provides thatArticle 165 of the Constitution provides; -(6)The High Court has supervisory jurisdiction over the subordinate courts and over any persons, body or authority exercising a judicial or quasi-judicial function but not over a superior court.(7)For purposes of Clause 6, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in Clause (6) and make any order or give any direction it considers appropriate to.”
38.Without having to rehash the DRC decision delivered on the 23rd of June, 2020 and the facts as laid out at the beginning of this judgement it would be important to restate the law and procedure of withdrawal or discontinuation of suits including legal precedents.
40.Though the complainant sent a notice of withdrawal pursuant to Order 25 Rule 1 the DRC rightly noted that the applicable Rule is Rule 2 as the complaint had been set down for hearing and was awaiting a decision.DRC further noted that under Rule 2 they were to allow withdrawal and upon such terms were deemed just.
41.The issue herein is not on the withdrawal that was allowed but on the decision arrived at and orders issued after the DRC allowed the withdrawal .
42.In the case of Bejing Industrial Designing and Research Institute and Lagoon Development Civil Appeal No. 1 of 2015, the Court of Appeal considered the import of Order 25 Rule 2 and had this to say.
43.In the same case the Court of Appeal made reference to the decision of our own Supreme Court which adopted a similar approach of not inhibiting a withdrawal in the case of John Ochanda vs Telkom Kenya Ltd Supreme Court Application No. 25 of 2014. The Supreme Court referring to Rule 19 of the Supreme Court rules which allows a party to withdraw any proceedings with leave of court where our own Ibrahim SC J stated;
45.From the above cases the much the court can do in a withdrawal of case situation is to order costs be paid to the opposite side should it be appropriate.
46.Having considered the above the court will turn to the circumstances of this case and pose a question whether a court on its own motion can proceed and make a determination the withdrawal notwithstanding and give adverse orders when there is no longer a suit before it?
48.Smt Raisa Sultana Begam & others vs. Abdul Qadir & others AIR (1966 ALL 318)In the said case the C.J Desai stated
49.Further the Indian Authority of Raisa the court stated;-
51.Further in Macjoy vs United African Limited (1961) 3 All E.R 1169 at 1172 Lord Denning L.J stated
52.The sum total of the above analysis is that the DRC apart from considering the issues of costs, it should have downed its tools on once it recorded the withdrawal as it had no part to play thereafter. It could not interfere with the decision of the plaintiff neither did not have further jurisdiction to proceed further with the matter no matter the evidence before them. It had become fuctus officio.
53.It was argued that the DRC of the Constitution and together with 1st Respondent had a duty to uphold and protect the constitution, now that it had adverse information and hence to make the orders.
54.Article 88(1) establishes the 1st Respondent proceeds provides for its mandate.Article 88(4)(e) provides that;
55.Under the rules of procedure for settlement of disputes, disputes arising from registration of persons as voters, nomination of candidates, violation of the code of electoral conduct any other election related complaint shall be guided by the rules and procedure of settlement of disputes.
56.The object of the rules is to provide a procedure and mechanisms for expeditious, efficient, lawful, reasonable and procedurally for settlement of disputes including those contemplated under Article 88(e) of the Constitution and Section 74 of the Act.
57.The DRC’s mandate quite clearly is limited to hearing disputes and cannot usurp the powers of the 1st Respondent or purport to carry out its Constitutional mandate. So that in the context of this matter as as soon as the case was withdrawn , there was no longer a dispute before it. It had no duty or obligation to act beyond its mandate of dispute resolution. At best the committee could outside the case and administratively pass any information of interest to the 1st Respondent for its further action.
58.Before concluding The court observed the gender card being played by counsel for the Petitioner while at the same time referring the court to Article 27 of the Constitution that provides that every person is equal before the law and has the right to equal protection and equal Benefit before the law.
59.Article 27(3) reminds us that women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.
60.The Petitioner is a young and educated woman who is serving as an officer in the National Constituency Development Fund. She attempted to enter politics which means the avenue was open for her to vie for the seat of Member of County Assembly Habaswein ward despite her age and gender as provided for by the Constitution.
61.Every right has an obligation. Article 193(1) sets the qualification for election as a Member of County Assembly. Article 193 (2) disqualifies one from being legible if one is a State officer or public officer.There is a requirement for public officers to resign 6 months in advance under section 43(5) of the Elections Act.
62.A perusal the proceedings before the DRC confirms that the Petitioner had not presented her resignation letter to the Returning Officer. Indeed, on record there was none. She was still in employment. Further when filing her self-declaration form from Ethics and Anti-corruption Commission the Petitioner left the space for employment details blank. She did not disclose her employment status.
63.Counsel stated in submissions that the Petitioner had resigned. The court asked for the resignation letter. A copy of the same was availed to this Court, even though is it not too late to present it at this point? Secondly how authentic is in the circumstances of this matter. The record of DRC indicate that the Petitioner had informed the Returning officer that she was an employee of non-governmental organization. The Petitioner did not negate the statement of the returning officer. It appears that the letter of resignation was an afterthought.
64.The Constitution in Article 3 provides that Every person has an obligation to respect, uphold and defend the Constitution; this covers all Kenyans both men and women, young and old.
65.At the end the court arrives at the following disposition; -i.An Order of Certiorari do issue quashing the decision of the Dispute Resolution Committee to quash the decision of the Returning Officer, Wajir South Constituency clearing and nominating the Petitioner to vie for the position of Member of County Assembly in Habaswein Ward.ii.An Order of Certiorari do issue quashing the decision of the Dispute Resolution Committee to de-register the Petitioner as as a candidate to vie for the position of Member of County Assembly in Habaswein Ward under the Umoja Summit Party within 48 hours.iii.Based on the evidence the court declines to issue and order of mandamus directing or compelling the 1st Respondent to gazette the Petitioner for the position of Member of County Assembly in Habaswein Ward.iv.The court declines to compel the 1st Respondent to include the Petitioner on the ballot paper for the position of Member of County Assembly in Habaswein Ward.v.above notwithstanding the 1st Respondent be at liberty to take any further and/or appropriate action based on the available information on the candidacy of the Petitioner.vi.Each party to bear their own costs.