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Kuno v Korane & 3 others (Constitutional Petition 11B of 2022) [2022] KEHC 12039 (KLR) (21 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 12039 (KLR)
Republic of Kenya
Constitutional Petition 11B of 2022
A Ali-Aroni, J
July 21, 2022
IN THE MATTER OF: ARTICLES 1,2,3,10,23,24,38,48 CHAPTER SIX 88,159,160,165(3), 180,193(B), 232,258,259, 260 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF: CONTRAVENTION OR BREACH OF THE CONSTITUTION OF KENYA 2010 TO WIT, ARTICLES 2,3,10(2) (C), 38, CHAPTER SIX,180 AS READ WITH 193 (1) (B)
AND
IN THE MATTER OF: ELECTIONS ACT 2011; SECTION 22 (AS READ
WITH REGULATION 47 OF TH ELECTIONS (GENERAL) REGULATIONS 2012);
SECTION 74; THE ELECTION LAWS (AMENDMENT) ACT 2016; THE ELECTION LAWS (AMENDMENT) ACT 2017; AND THE ELECTIONS (GENERAL) REGULATIONS 2012
AND
IN THE MATTER OF: THE LEADERSHIP AND INTEGRITY ACT 2012;
THE OATHS AND STATUROTY DECLARATIONS ACT; THE COUNTY GOVERNMENTS ACT 2012; THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT 2011;
THE ETHICS AND ANTI-CORRUPTION COMMISSION ACT 2011 & THE UNIVESRITIES ACT 2012.
AND
IN THE MATTER OF: NOMINATION OF ALI BUNOW KORANE AS A NOMINEE FOR GUBERNATORIAL ELECTION FOR GARISSA COUNTY
Between
Issa Kuno
Petitioner
and
Ali Bunow Korane
1st Respondent
Independent Electoral & Boundaries Commission
2nd Respondent
Commission For University Education
3rd Respondent
Returning Officer, Independent Electoral and Boundaries Commission, Garissa County
4th Respondent
Judgment
1.The Independent Electoral & Boundaries Commission, the 2nd Respondent, the body charged with the mandate of conducting and supervising Elections and Referanda under Article 88 of the Constitution, on the 4th of June 2022, received nomination papers from the 1st Respondent, Ali Bonow Korane for purposes of verification and clearance for the 1st Respondent to stand for the seat of Governor County of Garissa. On the basis of the documents presented to the 4th Respondent as an agent of the 2nd Respondent the 1st Respondent was cleared and issued with a nomination Certificate as a nominee for the gubernatorial seat for the County of Garissa under the Banner of the Jubilee Party of Kenya.
2.Among the documents the 1st Respondent presented to the 2nd Respondent is a Certified Copy of a Master’s of Science degree in intelligence and Security Studies from Liverpool John Moores University.
3.The Petitioner states that armed with information that the Education qualifications provided by the 1st Respondent to the 4th Respondent, The Returning Officer of the 2nd Respondent, did not meet the necessary legal threshold, the Petitioner on the 18th day of June 2022 went to file a complaint with the 2nd Respondent but was informed by officials of the 1st Respondent that he was time barred. His Lawyer wrote a letter to the 2nd Respondent’s chairman on the 20th of June 2022 seeking for hearing of the Complaint but to date no response has been received.
4.Due to failure of the complaint being received by the 2nd Respondent, heard and determined, the Petitioner herein Issa Kuno, by a Petition dated 23rd June, 2022, moved this court citing contravention and breaches of Articles 2,3, 10 (2) (c), 38, Chapter six and Article 180 as read with Article 193 (1) B of the Constitution.
5.The Petition was brought pursuant to Article 165 (3) (d) (ii), as read with Article 23(1) of the Constitution of Kenya 2010.The Petitioner seeks for the following Orders; -a.A declaration that the 1st Respondent does not possess valid academic qualification to contest for the position of a County Governor.b.A declaration that the 2nd and 4th Respondent violated Articles 88(4), 180 of the Constitution and Section 22 of the Elections Act by issuing a nomination certificate to the 1st Respondent while he did not meet the educational requirements.c.An order of certiorari to remove to the High Court and quash the decision of the 2nd and 4th Respondents that granted nomination certificate and clearance of the 1st Respondent to contest the Garissa County gubernatorial election.d.An order revoking the nomination of the 1st Respondent to contest for the Garissa County gubernatorial election.e.A conservatory order stopping the 2nd Respondent from forwarding the name of the Respondent for printing of the ballot papers for Garissa County gubernatorial election and/or presenting their names for election in the 9th August General Elections.f.A declaration that the 1st Respondent has violated Chapter Six on Leadership and Integrity to the following extent;i.That the 1st Respondent duly filled and presented to the IEBC for the purposes of nomination certified copies of invalid educational qualification certificates namely a foreign Master’s Degree Certificate from the University of Liverpool John Moores University without proper authentication and recognition.ii.That the 1st Respondent obtained clearance to participate in the Gubernatorial Elections yet he neither holds the requisite academic qualifications (pursuant to Article 180 (2) as read with Article 193 (1) (b) of the Constitution and Section 22 of the Elections Act 2011 & Regulation 47 of the Elections (General) Regulations 2012) nor possess the requisite ethical and moral requirements (espoused in Chapter Six of the Constitution as read with Section 13 (1) (c ) & (g) and (2) of the Leadership and Integrity Act 2012 and Regulation 46 of the Elections (General) Regulations (2012) to vie for the position of the Governor.g.An order compelling the 2nd Respondents to disclose information presented by the 1st respondent and which was used for clearance of the 1st Respondent and subsequent issuance of a nomination certificate.h.An order compelling the 3rd Respondent to disclose information relating to recognition of the 1st Respondent’s academic qualification in accordance with the standard guidelines.i.Any other order that this Honourable Court may deem fit and just to grant to ensure that the rule of law is upheld by the Respondents in exercise of its legislative function.j.The cost of this petition be borne by the Respondents.
6.In his affidavit in support the Petitioner stated that he has brought the Petition on his own behalf and in the interest the public and especially the residents of Garissa.
7.He states further that he wrote to the 3rd Respondent seeking to know whether it had authenticated the Master’s degree presented to the 1st Respondent, whether it had recognized the Liverpool John Moores University and the criteria used by the said University to admit the 1st Respondent without a bachelor’s degree and has not received a response.
8.He averred further that the 3rd Respondent, the Commission on University Education, failed to comply with guidelines for both recognitions of institutions and accreditation of degrees as set out on their website asi.The 1st Respondent does not have a certified degree from a recognized university.ii.The 1st Respondent in the 2017 elections used a degree certificate in Business Administration purporting to be from the University of Nairobi which the said University has since disowned.iii.That the initial degree having been disowned by the University of Nairobi, the 1st Respondent has submitted a different Degree Certificate to the 2nd Respondent for purposes of clearance to vie for the seat of Governor Garissa county in the 9th August 2022 General Elections.iv.The 1st Respondent relied on a Master’s degree without having a Bachelor’s degree which the 3rd Respondent wrongly recognized.
9.Further he averred that there are questions that come to fore based on the above averments;i.Whether the 1st Respondent is in possession of requisite qualifications.ii.Whether the submissions of a Master’s degree without a valid Bachelor’s degree the 1st Respondent possess the requirement qualifications.iii.Whether by exchanging a fraudulent certificate and replacing the same with an un-authenticated foreign degree in a bid to obtain clearance from the 2nd Respondent, the 1st Respondent possess the requisite moral and ethical requirements expected of a leader under Chapter Six of the Constitution as read with the Leadership & Integrity Act 2012.
10.In an affidavit in opposition to the Petition dated the 5th July 2022 and a further affidavit dated 14th July 2022 the 1st Respondent states that he is a holder of a Master’s degree having enrolled at the Liverpool John Moores University where he graduated with a degree in Intelligence & Security Studies on 1st July, 2021.And on 28th January 2022, the 3rd Respondent recognised the Liverpool John Moores University as a recognized university.
11.That the Liverpool John Moores University admitted him for a Master’s degree based on 40 years work experience which he extensively referred to
- 1982 – He was appointed as an officer in the Kenya Armed Forces.
- 1985-2000 – District Officer and later District Commissioner in various parts of Kenya
- 2001 – enrolled for training in administration at the National Defence Collage from 15th -20th November, 2001.
- 2012-2013- Special envoy to Horn of Africa to coordinate peace in the region.
12.Further he deposes that On 25th January 2020 the 3rd Respondent was certified with method used by the university and accredited the said degree. And if the Petitioner was doubtful with the accreditation he ought to have appealed the decision which he failed to do.
13.Further, the Petitioner has failed to bring his case within the confines of Article 22 of the Constitution as he has failed to give particulars of the alleged violations of the Constitution. It was averred in the further affidavit that the allegation that the 1st Respondent in 2017 submitted to the 2nd Respondent a Master’s degree in Business Administration from the University of Nairobi is false and intended to mislead the court as in 2017 the 1st Respondent submitted to the 2nd Respondent a Bachelors of Arts in International Studies and Diplomacy degree certificate from the Washington International University.
14.The 1st Respondent in the further affidavit admits that an allegation of fraud was made immediately after he won the 2017 elections.He however, posits that the Director of Criminal Investigation investigated the allegations, no adverse findings were made against him or any further action recommended by Director of Criminal Investigations.
15.He states further that one Dr. Aden Mukhtar Bare Petitioned in No. 387 of 2018 raising similar false allegations but the said Petition was however withdrawn.
16.Further he stated that he did not present to the 2nd Respondent the documents produced on page 20 of Petitioner’s supporting affidavit. And that in 2017 two petitions filed to contest his educational qualifications after elections were determined in his favour.
17.The 1st Respondent contended further that he has not violated any provision of the Constitution nor Chapter 6 as read with the Leadership & Integrity Act on integrity and met all the Constitutional and statutory requirements for clearance by the 2nd Respondent to vie for the seat of Governor Carissa County.The petition is intended to interfere with the 1st Respondent’s constitutional right to contest for elections.
18.In a replying affidavit on behalf of the 2nd and 4th Respondent sworn by Chrispine Owiye, the Director of Legal & Public Affairs of the 2nd Respondent he stated that the 1st Respondent met all the requirements including academic qualifications, and the clearance.
19.He averred further that the 1st Respondent submitted with his 2022 nomination certificate a Master’s degree in Intelligence & Securities Studies from the University of Liverpool John Moores University which institution is recognized both in Kenya and the United Kingdom.
20.That in 2017 the 1st Respondent submitted a degree certificate from Washington International University in Bachelor of Arts in International Studies and Diplomacy.
21.And that indeed the Director of Criminal Investigations had on the 27th of February 2018 requested through a letter for the 2nd Respondent to furnish them with the documents the 1st Respondent submitted in 2017.In compliance the Commission submitted to the said Agency the documents requested for vide a letter dated 25th April 2018.No adverse findings were made against any party nor charges preferred.
22.He further averred that the affidavit of Kevin Langat dated 18th December 2018 was in response Petition No. 387 of 2018 that withdrawn.
23.As for the 3rd Respondent it relied on grounds of opposition filed on 5th July 2022 that spoke towards the jurisdiction of the court and supporting the Position taken by the 2nd and 4th Respondent.
24.The Petition was canvassed by way of submissions. Counsel for the Petitioner opted to submit orally whereas the counsel for the 1st Respondent, 2nd and 4th opted for written submissions which they highlighted at the hearing. The court at this very early juncture is grateful to counsel on record for filing their pleadings and submissions in record time being of essence in the matter. The submissions and authorities filed have greatly assisted the court in arriving at its determination. The court too had to consider the matter under very difficult circumstances due to other official engagements and the time constraints that go with matters elections.
Submissions
Petitioner’s Submissions
25.Counsel for the Petitioner Mr. Kanjama informed the court that he would rely on the petition and the affidavit in support and authorities on his list of authorities.
26.It was counsel’s submission that both the 1st and 2nd Respondent admit that the 1st Respondent submitted a Master’s degree for his 2022 nomination. Further they admit that in 2017 he submitted a Bachelor of Arts degree from Washington International University. However the 2017 degree did not get accreditation.
27.It was contended further that from information the Petitioner affirmed that the 1st Respondent submitted an MBA certificate from University of Nairobi which certificate was found to be fraudulent.And that the evidence of the 2nd Respondent contradicts that of the 1st Respondent.And that the question is whether in 2017 the 1st Respondent presented a Bachelor’s degree whereas in 2022 he presented a Masters without support of a Bachelor’s degree?Reference was made by Counsel to the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR.
28.On the issue of the degree counsel relied on the case of Janet Ndago Ekumbo Mbete vs IEBC & 2 Others (2013) eKLR where the court defined a degree to be one that is awarded upon completion of required studies.He also relied on Mohamed Abdi Mahamud vs Ahmed Abdullahi & 3 others;Ahmed Ali Muktar(Interested Party)e KLR which gives a background why as to why education qualifications are crucial for elected representative of the people.He also relied on Dr. Thuo Mathenge & Another vs Nderitu Gachagua & 2 Others [2013] eKLR where the court defined an academic degree to be that which is awarded after academic courses.Where the court of Appeal noted Section 22 of the Elections Act and Regulation 47 requires two things – recognition of the university attended and recognition of degree attained.
29.Further Counsel submitted that the 3rd Respondent has published recognition standards in its web site that require holder of a degree award to have met minimum requirements.
30.He argued that Raila Odinga Petition No 1 of 2017 recognized that burden of proof keeps shifting between a Petitioner and a Respondent in Election matters and once the Petitioner established burden of proof; appropriate; then respondents had evidentiary burden to discharge.
31.It was contended that the Petition and the affidavit in support adequately discharged the burden of proof that the 1st Respondent lacked academic, moral and ethical qualifications to stand for general elections.
32.The question of integrity and leadership in relation to candidates arises and therefore courts have jurisdiction to interpret and apply the Constitution and to examine if a candidate met the threshold.
33.The nature of election matters should be inquisitional. The court asked for documents, IEBC failed to produce several documents to demonstrate whether 1st Respondent had qualified in the 2017. In the Presidential Case when 2nd Respondent failed to disclose materials, the court concluded it was important to satisfy the test in Article 81 of the Constitution that the elections were free, fair, transparent, accountable and verifiable.
34.Counsel concluded by stating that if the court concludes that the 2nd Respondent did not verify that 1st Respondent meets the minimum standards the court ought to grant prayers in the Petition and not allow the 1st Respondent to continue as a nominee.
The 1st Respondent’s submissions
35.Counsel for the 1st Respondent Mr. Issa Mansur identified 3 issues for determination;I.Whether the Petition has merit;II.Whether the 1st Respondent is qualified to vie as a Gubernatorial Candidate for the Garissa County in 2022 elections; andIII.Whether the 3rd Respondent properly exercised its discretion in accrediting the 1st Petitioner’s master’s degree.
36.Further, it was submitted that the main contention is that the 1st Respondent does not possess valid academic qualifications to contest for a County Governor’s position. In support the Petitioner attached copies of a false document purporting to be a degree certificate that the 2nd Respondent used to clear the 1st Respondent in 2017.The Petitioner failed to disclose the source of the false document claiming that he received it from an undisclosed person. The document was introduced to malign the name of the 1st Respondent.
37.It is submitted further that in the supplementary replying affidavit the 2nd Respondent has demonstrated that the same false allegations were peddled in 2018 and the DCI absolved the 1st Respondent and no adverse recommendations made to 2nd Respondent.
38.Counsel contended that a Petition found on false document is for striking out and dismissal as held on Robert Techquiz & Others vs Vivian Imerman Case No. A2/2009/2133/2010/EWCA civ. & Okiya Omtatah vs A.G. & 2 Others [2020] eKLR.
39.It was equally submitted that the 1st Respondent meets all the constitutional and statutory requirements set out in Article 180 of the Constitution and Sections 22 & 25 of the Election Act. Reference was made to the cases of Dr. Thuo Mathenge & Another vs Nderitu Gachagua & 2 Others(supra) and Mohamed Dado Hatu v Dhadho Gaddae Godhana & 3 others [2017] eKLR
40.Counsel further stated that the legal burden to prove the allegations in the Petition lies upon the Petitioner but he failed to satisfy the same. Reference was made to Musyoka vs Returning Officer, IEBC, Machakos County & 3 Others (2022) KEH 160(KLR) .
41.That therefore the 3rd Respondent properly exercised its mandate in accordance with Section 5 of the University Act. Further The court was referred to the case of Janet Ndago Ekumbo Mbete vs IEBC & 2 Others.
42.Counsel, went further to contend that the petition was founded on false documents. The Petitioner should have sort for all documents and not engage in a fishing exercise. A Petition founded on false documents, rumours and innuendos is clear abuse of court process. The 1st Respondent has sufficiently demonstrated that he is qualified to vie as a Gubernatorial candidate for Garissa County and the Petition dated 22nd June 2022 should be dismissed.
The 2nd and 4th__ Respondent’s Submissions
43.It was submitted on their behalf that court lacks jurisdiction in view of the provisions of Article 88(4) (d) & (e) of the Constitution and Section 74 (1) of the Elections Act. Court was referred to Samuel Kamau Macharia & Another vs KCB & 2 Others [2012] eKLR
44.It was also contended that the Petition is disguised as s human rights Petition while the same is a pre-election dispute. In this regard the court was referred to Isaiah Gichu Ndirangu & 2 Others vs IEBC & 4 Others Petition No. 83 of 2015.
45.Further it was submitted that the Petition does not raise any Constitutional issue, further it does not precisely lay down the provisions of the Constitution allegedly violated and in what manner. Court was referred to Godfrey Paul Okutoyi & Others vs Habil Olaka & Another [2018] eKLR, Josiah Taraya Kipelian Ole Kores vs Dr. David Nkedienye & 3 Others [2013] eKLR, Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamed & 3 Others; Ahmed Ali Muktar (I.P) [2019] eKLR.
46.The court was urged of the need to balance between the protection of human rights and fundamental freedoms under the Constitution and the limitation of its jurisdiction as espoused in Benjamin Munyuoki Musau vs Daniel Mutua Muoki & 2 Others [2013] eKLR.
47.It was further urged that the Petition is incompetent, fatally defective, misconceived and abuse of court process.
Analysis and Determination
DATED, DELIVERED AND SIGNED IN GARISSA THIS 21ST DAY OF JULY, 2022…………………………ALI-ARONIJUDGE
48.The Petitioner alleges constitutional violation of various Articles of the Constitution which include Chapter Six of the Constitution read alongside the Leadership and Integrity Act.
49.The Petitioner contended that the 2nd and 3rd Respondents had failed to uphold and defend the provisions of the Constitution and he moved the court therefore pursuant to Articles 165 (3)(d)(ii) & 23 (1) of the Constitution.
50.The case of the Petitioner was founded on the allegations that the 1st Respondent lacked the academic, moral and ethical standards espoused by Article 10, Chapter Six of the Constitution among others and the Leadership & Integrity Act, the Election Act and rules.
51.That in 2013 & 2017 the 1st Respondent relied on a fraudulent degree certificate from the University of Nairobi to be cleared for nomination and that EACC had found the said degree certificate to have been fraudulent. As he sought for clearance to vie for the same Gubernatorial seat, the 1st Respondent presented another fraudulent Master’s degree certificate having not attained the basic Bachelor’s degree that would progress one to a Master’s degree and therefore that the 1st Respondent based on the above lacks educational, moral and ethical standards and his actions violation of Chapter Six and Leadership & Integrity Act and he cannot therefore qualify to be nominated as a candidate to vie for a seat in the next general election.
52.The court stated in an earlier ruling in this matter that it agreed with the Respondents to the extent that Article 88 (4) (d) & (e) and Section 74(1) of the Elections Act that determination of pre-election disputes is a preserve of the 1st Respondent in the first instance.
53.The court went further to say that it will not get into the arena of the 1st and 3rd Respondents Mandate to the extent of qualifying the degrees but was concerned with the alleged contravention or violation of the Constitution alluded being Chapter 6 of the constitution and the Leadership & Integrity Act. And because the court has the mandate to safe guard and uphold the provision of the Constitution and to Protect its Authority.
54.Section 107 & 109 of the Evidence Act provides that person who alleges a fact to prove the same. The burden of proof lies on the person who relies alleged facts. A prima facie must first be laid out. The legal burden of proof must be satisfied.
55.Having considered the petition, the replying affidavits, submissions and authorities cited the issues for determination arei.Whether the 1st Respondent presented fraudulent degree certificate to the 1st Respondent.ii.Whether a previous certificate submitted by the 1st Respondent was declared fraudulent.iii.Whether the 1st Respondent violated the principle set out in Article 10, Chapter Six of the Constitution as read with Leadership and Integrity Act.iv.If so what are the available remedies?v.Who pay costs.
56.The need for precision in Constitutional Petitions has been emphasized since before the new Constitutional Order that came to force in August 2010 Constitution in the classicus holding in the case of Anarita Karimi Njeru vs Republic [1979] eKLR the court stated
57.In Mumo Matemo vs Trusted Society of Human Rights Alliance and 6 Others Civil Appeal No. 290 of 2012 referred to the Anarita case & also an English case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 which holds true today as follows
58.Going through the pleadings and the submissions of the Petitioner it is not clear whether he is before this court due to violation of the provisions of the Constitution or he is complaining of pre-election dispute which squarely fall under the mandate of the 2ND Respondent. And whether he wants the Court to investigate a current degree certificate or 2017. If so the court was not convinced why the petitioned armed with information since 2017 did not present, the issue to the 1st Respondent on time in the 1st instance or relevant agencies for conclusive investigation. Secondly if the degree certificate was faulty why the 3rd Respondent was not moved timeously as prescribed under the University act.
59.Having considered the need for precision and why it is necessary, the court then turn to the need for parties not to seek redress on matters that are not constitutional by clothing them as constitutional matters. See In Godfrey Paul Okutoyi & Another vs Habil Olaka & Another (2018)e KLR
60.The integrity issues raised against the 1st Respondent were based on fraud. Sections 109 and 112 of the Evidence Act address the issue.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall be on any particular person.In Virjay Morjama vs Nansigh Madhusingh Darbai & Another [2000] eKLR the court stated inter alia that
61.Apart from averments of the Petitioner that a fraudulent degree certificate from the Nairobi University was allegedly used to clear the 1st Respondent in 2017 and an affidavit from EACC stating they were investigating the matter no conclusive proof of the alleged fraudulent certificate was placed before the Court.
62.Further the 1st and 2nd Respondents denied that the said certificate was indeed used in 2017. The source of the disowned certificate was not given either, was it a genuine document?
63.Counsel on record was in a suit that raised the same issue however the said suit was withdrawn and the issue left hanging without any conclusive determination on the same.
64.The 1st and 2nd Respondents in rebutting the said degree Certificate indicated that the issue raised in 2018 was taken up by the Director Criminal Investigations and no adverse information related to the 1st Respondent served his terms.
65.The impression the court gets after listening to the parties is that the Petitioner stumbled upon the allegedly forged degree certificate, did not do his research well with the bodies that would be better placed to investigate such the Director of Criminal Investigation & Ethics & Anti-Corruption Commission or even the 3rd Respondent but came to court seeking for the court’s intervention to assist in getting evidence, for the court to interrogate the certificate and make a finding of lack of integrity on the part of the 1st Respondent.
66.The court is not charged with the mandate of investigating degrees. Secondly even if the Petitioner was aggrieved by the accreditation he ought to have appealed in accordance with the University Act, which he did not do.
67.International Centre for Policy & Conflict &Others v.Attorney-General & 6 Others [2013] eKLR, the court stated
68.An election is a serious affair and the court cannot casually be expected to interfere with the process based on speculation conjecture or half backed investigations on the issue of the fake certificate or indeed any other.
69.The Petitioner shared a newspaper cutting meaning that he knew of the allegation way back and he ought to have followed the investigation to its logical conclusion.
70.Failure to place evidence of the allegation of forgery means that the basis for the alleged violation of Chapter Six of the Constitution and the Leadership & Integrity Act must fail.
71.The court is persuaded, that costs be squarely borne by the Petitioner if for no other reason in a bid to discourage litigation based on rumors, hearsay, conjecture, speculation or meant to malign and discredit other parties. And at best to encourage parties to follow due process in ascertaining authenticity of documents and information they come across
72.Consequently, the Petition cannot succeed and it is hereby dismissed with costs to the Respondents.
