1.The petitioners filed the petition dated 8th July 2022 alongside a notice of motion of even date in which they seek the following orders:-
2.They again filed another notice of motion dated 8th July 2022 seeking the following orders:-The petition and notices of motion are all supported by the grounds on their faces and the affidavits by the 1st petitioner.
3.Mr. Okubasu for the 1st respondent filed a preliminary objection dated 15th July 2022 raising the following grounds:-
4.Mr. Olendo for the 2nd respondent filed a preliminary objection dated 15th July 2022 raising the following grounds:-
The petitioners/applicants’ case
(Notice of motion dated 8th July 2022)
5.A summary of the grounds and the supporting affidavit by the petitioners is that the constitution is under serious threat by the 1st respondent who has promised to suspend it if elected president in the forthcoming elections.
6.It is averred that the 1st respondent in his campaigns and in his manifesto has violated the constitution by stating that if elected he would:-
7.They assert that through the 1st respondent it has clearly been revealed that:
8.The deponent avers that the summons applied for will enable the Court dispense justice efficaciously, as those summoned will avail the best evidence to the court. To him this is part of discovery during litigation. It is their case that the sought for information is very important to them since the 1st respondent is vying for Presidency of the Republic of Kenya.
9.Its on the above grounds and averments that the petitioners seek to have the 1st respondent’s candidature suspended.
The respondents’ case
10.The 1st respondent did not file any response to the petitioners’ applications.
The 2nd respondent
11.The 2nd respondent through Mr. Olendo filed combined grounds of opposition to both the petition and application dated 8th July 2022. A summary of the grounds relevant to the application are that this Court has no capacity to assess the mental capacity of the 1st respondent without any evidence to rely on. Further that the petitioners’ apprehension is unsubstantiated as per Article 84 of the Constitution and section 110 of the Election Act and paragraph 15(1) of the second schedule to the Elections Act as read with Regulation 15 of the Rules of the Procedure on settlement of Disputes (L.N. 139/2012) (the Rules).
12.He refers to Regulation 15(4) of the Rules which provides for the sanctions that may be imposed for misconduct. He further refers to paragraph 7(b) (iii) and paragraph 9 of the Second Schedule of the Elections Act. Another ground raised is to the effect that the petitioners should have sought the information they want from IEBC. That there is no evidence that they did. Further that there is no demonstration of how the 1st respondent’s promises and manifesto will contravene or threaten the petitioners rights and freedoms. Its stated that there are legal provisions governing the issues raised in the 1st respondent’s campaigns.
13.The 2nd respondent filed the following grounds of opposition to the petitioners application dated 8th July 2022 for production of documents/information:-
The petitioners’ response to the preliminary objections
14.The petitioners filed grounds of opposition to the preliminary objection by the 1st respondent which are dated 20th July 2022. They are as follows:-(xii)The 1st respondent present an existential threat to the Republic and the Petitioners prayers in their applications and petition merit the judicious consideration of the Court at full trial.(xiii)The 1st respondent’s Notice of preliminary objection is misguided, misconceived and amounts to abuse of court process as it seeks to delay the determination of the petition and will in some back door way grant the 1st respond a loophole to vie for office on dangerous constitutional blasphemies bordering on treason.(xiv)The preliminary objection ought to be dismissed in limine.
15.The petitioners also filed grounds of opposition to the 2nd respondent’s preliminary objection. They are dated 24th July 2022. Though these grounds are shown as referring to the 2nd respondent’s preliminary submissions the body of the same refer to those of the 1st respondent. They are as follows:-
The parties submissions
16.The parties filed written submissions which were later highlighted. The petitioners submissions to the 1st & 2nd applications dated 8th July 2022, and dated 20th July 2022 respectively. On whether the petitioners/applicants have demonstrated that they are entitled to grant of the conservatory orders sought counsel submits that if the interim orders are not granted they and the members of public will suffer irreparable loss as the 1st respondent who has a huge following may find this way to the ballot box rendering the petition an academic exercise.
17.They submit that they have demonstrated through the affidavits that the 1st respondent is in clear breach of the constitution. That he has threatened to suspend the constitution. They accuse the 2nd respondent of continuing to fund the 1st respondent irrespective of all he is doing.
18.As to whether the substratum of the petition will be lost if the interim orders are not granted they submitted that the substratum is limited by time. They seek to have interim orders in terms of all their prayers claiming that if that is not done and the 1st respondent wins the elections their petition will die a natural death.
19.They submit that the 1st respondent’s behavior leaves a lot to be desired, and the public should be protected against all that. They are keen to know the mental status of the 1st respondent as a presidential candidate. Relying on the case of David Ndii & others v. Attorney General & others  eKLR they submit that election is a process right from the closure of the dispute resolution committee to the swearing in of the President elect. They argue that their applications are not opposed save for the preliminary objection by the 1st respondent.
20.In respect of the preliminary objection raised by the 1st respondent they have submitted that under Rule 99 of the Election (General) Regulation 2012 owing to the timelines set the 2nd respondent will not be able to conduct or hold a session in order for the petitioners to exercise the doctrine of exhaustion before coming to this Court. Its their contention that under the Fair Administrative Actions Act they were at liberty to access the Court to ventilate their grievance. They urge this Court to find that it has jurisdiction to handle this matter. The petitioners did not file any submissions in respect of the 2nd respondent’s preliminary objection.
21.In their highlights the 1st petitioner submitted that the issue of mental assessment was one issue of fact. That since the respondents filed a reply to the petition the same can’t be struck out. They argued that the substance of the petition goes beyond the issues of elections. That it’s brought on the basis of Articles 1, 2 & 3 of the Constitution. Further that it is premised on the Political Manifesto of the 1st respondent. Reliance was placed on the case of Sabina W. Chege v IEBC  eKLR and they argued that their reliefs are purely constitutional and are supported by substance.
22.Also referred to is the Hon. Mike Mbuvi Sonko v. The Clerk County Assembly of Nairobi City & Others. Supreme Court Pet NO. 11 (E008) of 2022 where the Court held that chapter six (6) of the Constitution is not a cosmetic one. It’s their submission that the petition seeks to protect he constitution from the 1st respondent’s threats, and it’s not about elections. They add that if the Court is convinced by the preliminary objections raised they urge the Court to be guided by the decision in Eunice Ng’ang’a v HELB & others  eKLR where the Court dismissed the preliminary objection on exhaustion.
The 1st respondent’s submissions
23.The 1st respondent’s submissions to the preliminary objection are dated 22nd July 2022 and field by Okubasu Munene & Kazungu advocates. Mr. Okubasu submitted on the issue of jurisdiction. He urged that the permeating issue in the peititon and application revolves around the suitability of the 1st respondent to contest in the oncoming presidential elections. He has raised the issue of this court’s jurisdiction to hear this matter as held in the case of Phoenix of E.A. Assuracne Company ltd v S. M. Thiga t/a Newspaper Service  eKLR. He also referred to Owners of the Motor Vessel “Lillian S” v Caltex (Kenya) ltd .
24.On the authority to clear candidates to contest in an election plus any other process, counsel referred to Article 88(4) of the Constitution, Regulations 16, - 19, 38, 42 – 43, 46 – 48, & 51 of the Election (General) Regulations 2012. He submitted that all this was the reserve of the 2nd respondent. On settlement of disputes arising from nominations counsel referred to Article 88(4) of the Constitution, Section 74 of the Elections Act & Section 4 of the IEBC Act. Rules 8, 9 (1) & 15 of the Rules of Procedure on Settlement of Disputes. On the basis of all the above provisions counsel submitted that IEBC wields the original jurisdiction and all that has been raised clearly falls within the jurisdiction of the IEBC. That courts have held that this IEBC jurisdiction runs upto the election date. See Diana Kethi Kilonzo & another v IEBC & 10 others  eKLR.
25.He submits that this court’s jurisdiction with regards to issues concerning suitability of a political candidate to be nominated can only be properly invoked by way of:-(i)Judicial Review.(ii)The Court exercising its supervisory jurisdiction under Article 165(3) & (6) of the Constitution.He relied on Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & 3 others, Ahmed Ali Mukta (interested party) (2019) eKLR in support.
26.On the issue of exhaustion of all available remedies he cited the High Court cases of:-(i)Leina Konchellah v IEBC & 2 others; Jubilee Party of Kenya (interested party) (2019) eKLR.(ii)William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (interested parties)  eKLR(iii)Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others  eKLR.(iv)In the matter of the Mui Coal Basin Local Community  eKLR.
27.Counsel finally submitted that the call for this court to settle disputes relating to or arising from nominations in the first instance, and to disqualify a candidate duly cleared by the IEBC on the grounds raised in the instant petition is misplaced and should be dismissed for want of jurisdiction.
The 2nd respondent’s submissions
28.The 2nd respondent’s submissions in respect of the preliminary objection dated 15th July 2022 are dated 25th July 2022. Mr. Olendo submitted that in determining whether a court has jurisdiction regard is made to the constitution, statute law and principles laid out in judicial precedents.See (i) Eliud Wafula Maelo v Ministry of Agriculture & 3 others  eKLR.(ii)IEBC v Jane Cheperenger & 2 others 2015 eKLR.
29.On the complaint on the nomination and / or qualification of the 4th respondent as a presidential candidate counsel has outlined the provisions in Article 88(4) (e)& (f) of the Constitution and Section 4 of the Independent Electoral & Boundaries Commission Act which sets out the functions of the Independent Electoral & Boundaries Commission. He refers to Section 109 of the Elections Act by which the IEBC formulated and gazetted the Elections (General) Regulations, 2012. He submits that Regulation 43 outlines the powers of returning officers in the nominations of candidates, while Article 137 of the Constitution sets out the qualification and disqualification of presidential candidates. Counsel further submits that IEBC is charged with regulating the conduct of candidates and their supporters in the electioneering period. A code of conduct has been developed pursuant to Article 88(4) (j) of the Constitution. Complaints are forwarded to IEBC and parties are heard. He refers to:(i)Eric Kyalo Mutua v Wiper Democratic Movement Kenya & another  eKLR;(ii)Fredrick Odhiambo Oyugi v. Orange Democratic Movement & 2 others  eKLR in support. He asserts that courts have desisted from interfering with such functions as those of the IEBC. Reference is made to Tom Dola & 2 Others v Chairman, National land Commission & 5 others  eKLR.
30.It is counsel’s submission that as has been held in various decisions by the Court of Appeal, where a dispute resolution mechanism exists outside the Courts the same must be exhausted before the Court’s jurisdiction is invoked. In support he cited the cases of:(i)Geoffrey Muthinja & another (supra)(ii)Kenya Revenue authority v Universal Corporation Ltd  eKLR among others.
31.On constitutional avoidance he submits that it shuns the practice of forging every other dispute into a constitutional petition when there are legally available averments to address such disputes, in order to circumvent those processes. He relied on the cases of: (i) Gabriel Mutara & 2 others vs. Managing Director Kenya Ports Authority & another  eKLR(ii)Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission and 3 others  eKLR.
32.Counsel further submitted that this petition is sub-judice to Nairobi Constitutional Petition No. E326 of 2022. He argues that if the two petitions go to full hearing the final decisions will be unimaginable parallels and worse still they could be contradictory.
Analysis and Determination
33.I have carefully considered the pleadings, the applications, the preliminary objections, the written and oral submissions, cited authorities and the law. I find the issues falling for determination to be as follows:-
34.What constitutes a preliminary objection was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd  E.A. 696. This was later emphasized by the supreme Court of Kenya in the case of Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others  eKLR as follows at paragraph 31:
35.The Supreme Court further pronounced itself on the purpose of a preliminary objection in the case of Independent Electoral & Boundaries Commission v Jane Cheprenger & 2 others  eKLR as follows:-
36.The respondents are challenging this Court’s jurisdiction to entertain this constitutional petition. According to them the petitioners ought to have first approached the 2nd respondent and thereafter only come to this court in the form of an appeal or Judicial review. I am in agreement with them that the issue of jurisdiction is a point of law. This has been confirmed by the Supreme Court in:(i)Hassan Ali Joho & another (supra)(ii)Mary Wambui Munene v Peter Gichuki Kingara & six others  eKLR.(iii)Whether this Court has jurisdiction.
37.In their Notices of preliminary objection the respondents have challenged this court’s jurisdiction to handle this petition and application. Their objection is based on the ground that by hearing this matter the Court will be usurping the independence, jurisdiction and mandate of the 2nd respondent under Articles 82, 88, 249(2)(a) & (b), Sections 23 & 109 of the Election Act 2011, and Regulations 16 – 19 of the Elections (General) Regulations 2012 to nominate, validate or invalidate the 1st respondent’s nomination as a presidential candidate in the 2022 general elections.
38.The locus classicus on jurisdiction is the case of “Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) 1989 KLR 1 where Nyarangi, JA held:-
39.In Samuel Kamau Macharia & another v. Kenya Commercial Bank Limited & 2 others  eKLR Application No. 2 of 2011 the Supreme Court held as follows:-‘ A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.”Also see:
40.The instant petition relates to a dispute to the elections scheduled for 9th August 2022. The petitioners are dissatisfied with the nomination of the 1st respondent as a presidential candidate. The nomination was not done by the voters. It was done by a body that is mandated to carry out that exercise. This body is called the Independent Electoral & Boundaries Commission ((IEBC).
41.This mandate to the IEBC is anchored in the Constitution and Statutes. Article 82(1) of the Constitution provides:-Parliament shall enact legislation to provide for:-a)……….b)The nomination of candidatesc)…d)The conduct of elections and referanda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections.
42.Article 88, of the Constitution establishes the IEBC. Sub Article (4) provides for its functions as follows:-(4)…………(a)– (d) ………..(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)– (k)………….
43.Section 74 of the Elections Act further provides for the settlement of disputes as follows:-
44.Section 4 of the IEBC Act stipulates the function of the Commission to be as follows:
45.Article 249(2)(a) & (b) of the Constitution provides for the independence of commissions as follows:
46.Pursuant to the provisions of the Elections Act there are in place Rules of procedure on settlement of disputes enacted through Legal Notice No. 139 of 2012. Rule 3 provides that the object of these rules is to provide a procedure and mechanisms for the expeditious, efficient, lawful, reasonable and procedurally fair settlement of disputes including those contemplated under Article 88(4) of the Constitution and Section 74 of the Act. Rule 4(1) provides for the application of rules to disputes or complaints arising from (b) nomination of candidates (c) violations of the Electoral code of conduct and (d) any other election related complaint.
47.Rule 8 provides for initiation of a complaint, Rule 9 provides for disputes arising from nomination of candidates;Rule 10 provides for when the returning officer or the commission acting on appeal may decline to accept a dispute;Rule 11 provides for powers of the returning officer to decide on any dispute arising from a nomination of a candidate within the electoral area;Rule 12 provides for the decision of the returning officer and obligates him / her to issue a written decision and record the reasons for the decision;Rule 13 provides for appeal of the returning officer’s decision to the commission; and,Rule 14 provides for the power of the commission to delegate to the committee the power to settle disputes.
48.Regulation 43 of the Elections (General) Regulation, 2012 provides for the validity of nomination papers and sub section (2) provides for when the returning officer shall hold a nomination paper invalid.
49.I have set out the above Rules, and Regulation to demonstrate that indeed the 2nd respondent has the mandate to hear pre-election disputes including the ones touching on nomination of candidates. They also have powers to nominate, validate or invalidate a nomination.
50.From the petitioners brief – the 2nd respondent released the names of the successful nominees for the position of the President in the forthcoming general elections, on 7th June 2022. After the release the 1st respondent continued with his campaigns and telling Kenyans what he stood for, his vision among many others. He then launched his Manifesto on 30th June 2022. On 1st July 2022 the 2nd respondent had the names of the presidential candidates gazetted and the 1st respondent’s name was among them. The campaigns by the 1st respondent continued. It was not until the 12th July 2022 that the petition herein was filed before this Court.
51.The release of the names of the presidential nominees which was made on 7th June 2022 was not a secret. It was in the public domain in line with Section 27(1) of the IEBC Act which provides:
52.Since the petitioners were dissatisfied with the nomination of the 1st respondent for whatever reason what step did they take? There is no evidence of them having filed any complaint with the 2nd respondent over the alleged violations of the constitution by the 1st respondent. From the provisions of the law already cited above, the first point of call when one is aggrieved by a nomination is the IEBC. The Rules provide for the procedure in lodging a complaint.
53.The petitioners have also questioned the 1st petitioners conduct and his utterances. The second schedule of the Elections Act provides for the Electoral Code of Conduct. It provides:-(1)This Code shall be subscribed to by—(a)every political party participating in the election of a president, a member of Parliament, a county governor, a member of a county assembly;(b)every candidate; and(c)every leader, chief agent, agent or official of a referendum committee.(2)This Code shall, in so far as it is applicable, bind the Government and every political party, leader, office bearer, agent and member of a political party or a person who supports a political party, and every candidate nominated under the electoral laws for any election.(3)All registered political parties and referendum committees shall execute this Code through the hand of their respective registered officials to signify their acceptance to be bound by the provisions of this Code and their commitment to strive to ensure that their members and any person who supports the political party abide by the code at all stages of elections and referendum.Paragraph 7. Where, in the opinion of the Commission, any political party or referendum committee participating in any election or referendum or the leader, office-bearer or member of a political party or person who supports the political party or referendum committee or any candidate at any election, in any way infringes any provision of this Code, the Commission may—(a)in the case of a political party and, subject to sub-paragraph (b), and in the case of the leader, any office-bearer or member of a political party or person who supports the political party referendum committee or candidate, impose upon that political party one or more of the following penalties or sanctions which any or all may be suspended on specific conditions—(i)a formal warning;(ii)a fine determined by the Commission;(iii)notwithstanding the provisions of any other written law, an order prohibiting the political party, whether permanently or for a specified period, from utilizing any public media time, through the television or radio broadcasting service of such media as have been or may be allocated to the political party for electoral purposes;(vi)an order prohibiting the political party, referendum committee or candidate from—(aa)holding particular public meetings, demonstrations or marches, or any kind of meeting, demonstration or march;(bb)entering any specified electoral area for purposes of canvassing for membership, or for any other electoral purpose;(cc)erecting placards or banners, or from publishing and distributing campaign literature;(dd)publishing or distributing campaign literature and electoral advertising or limiting the rights of the political party to do so, and such prohibition or limitation shall be notified to the relevant regulating officers under the Public Order Act (Cap. 56) in the affected places or electoral areas for purposes of the Act;(ee)in the case of the leader, candidate, an office-bearer or member of a political party or person who supports the political party or referendum committees impose any one or more of the penalties or sanctions referred to in subparagraph(a)(i) or (ii) of this paragraph;(b) Where a political party, referendum committee, leader or any office bearer, member or person who supports the political party, referendum committee or any candidate at an election fails, neglects or refuses to comply with the orders of the Commission issued under paragraph 7(a), the Commission shall impose upon the defaulting party any of the following sanctions which may be suspended on specific conditions—(i)in case of fine imposed, prohibit the defaulting party from participating in ongoing and future elections as candidates in case of a defaulting candidate or prohibit the political party or the referendum committee official from participating in ongoing elections and referendum, and future elections or referendum or any activity facilitated by the Commission until such fine has been paid;(ii)in case of failure to comply with any other sanctions imposed, cancel the right of such political party or candidate to participate in the next election; and(iii)file execution proceedings in the High Court to enforce the recovery of the fine.Paragraph 15. (1) The Commission shall set up the Electoral Code of Conduct Enforcement Committee which shall comprise of not less than five members of the Commission and shall be chaired by a member appointed by the Chairperson; the Commission may nominate a member of its staff to be the secretary to the Committee.(2)The Chairperson of the committee shall be a person who is qualified to hold the office of Judge of the High Court.(3)Every candidate, official and agent shall—(a)acknowledge the authority of the Committee to enforce the provisions of this Code on behalf of the Commission;(b)ensure compliance with summons issued to the party, its candidates or representatives by the Committee;(c)co-operate in the official investigation of issues and allegations arising at election period; and(d)respect and comply with the orders issued by the Committee.(4)The Committee shall issue summons to the person, political party or referendum committee against whom a complaint has been received as having infringed the provisions of this Code and any other person who the Commission has reason to believe to have infringed the provisions of this Code to attend its meetings. The meetings will be convened at any place which the Committee may deem fit.(5)In its proceedings, the Committee may examine the person summoned and may allow a person to have legal representation.
54.I have set out the above provisions of the Electoral code of conduct to clearly show that we have sufficient machinery entrenched under the Elections Act to manage and settle disputes and complaints regarding breach of the code of conduct. Such should be reported to the 2nd respondent. No complaint has been made to the 2nd respondent along these lines.
55.In this petition the petitioners are seeking orders to compel some offices, bodies etc to avail certain evidence or material to the Court. It is them who are making allegations against the 1st respondent. It’s their duty to avail evidence to the Court in support of their claims. The principle of law is that he who alleges a fact must prove it.
56.Sections 107 – 109 of the Evidence Act provide as follows:-
57.The 2nd respondent in nominating the 1st respondent as a presidential candidate actually made a decision. The Elections Act, IEBC Act, have set out the Rules and Regulations governing the challenging of such a decision. It has to be in form of a complaint, review or appeal to IEBC. The position is that the decision by the IEBC stands, since it has not been overturned or set aside.
58.The Supreme Court in the case of Silverse Lisamula Anami v Independent Electoral & Boundaries Commission & 2 others  eKLR.
59.This decision by the Supreme Court guides us on the process and procedure of handling pre-election matters/disputes.
60.After due consideration of the material before me I find that the petitioners did not follow or even attempt to follow the process for dispute resolution under the Elections and IEBC Acts, before filing this petition. For that reason they clothed their claim as a constitutional petition while in actual fact their issue is challenging the nomination of the 1st respondent as a Presidential candidate by the 2nd respondent. They therefore failed to adhere to the doctrine of exhaustion.
61.All these Rules, Regulations / Processes were not enacted just for the sake of it. They are meant to guide Kenyans on what should be done before, during and after elections. For the above reasons I find that the IEBC decision to nominate the 1st respondent to vie for presidency still stands. What is before this Court is neither an Appeal or Review.
62.This petition was filed prematurely before exhausting the dispute resolution process in place. I therefore find merit in the preliminary objections raised. They are allowed. The petition and applications are struck out with costs.