Takal v Adam & 3 others (Petition 12B of 2022)  KEHC 12633 (KLR) (21 July 2022) (Judgment)
Neutral citation:  KEHC 12633 (KLR)
Republic of Kenya
Petition 12B of 2022
A Ali-Aroni, J
July 21, 2022
Abdinoor Bashir Takal
Nathif Jama Adam
Independent Electoral and Boundaries Commission
Commission for University Education
Returnig Officer, Garissa County
1.The 4th Respondent, as an agent of the 2nd Respondent cleared the 1st Respondent, Nathif Adam Jama for nomination for the Garissa County Gubernatorial seat on the 4th of June 2022. This seem to have aggrieved the Applicant herein ABDINOOR BASHIR TAKAL who informed the court that he attempted to file a complaint against the said nomination with the 2nd Respondent on the 20th of June 2022 but was said to be time barred as he did not file his complaint in adherence to the timelines set by the 2nd Respondent.
2.The Applicant described himself as a male adult of sound mind residing and working for gain in Garissa County. The 1st Respondent Nathif Adam Jama is described as a Governor nominee on an ODM ticket for the gubernatorial seat, Garissa County. The 2nd Respondent Independent Electoral & Boundaries Commission, is described as a body charged with the responsibility of conducting, supervising and carrying out elections or referenda under Article 88 of the Constitution, the 3rd Respondent is the Commission on University Education, established under the University Act, 2012, with the mandate of promoting the objectives of University Education.
3.Aggrieved by the fact that his complaint was said to be out of time the Petitioner moved this court by way of a Constitutional Petition dated 23rd June 2022 pursuant to Articles 1, 2, 3, 10, 23, 24, 38, 48, 88, 159, 160, 165(3), 180, 193(3), 232, 258, 259 and 260 of the Constitution of Kenya.
4.He cited contravention and/or breach of Articles 2,3,10(2); 35, Chapter Six and Articles 180 and 193(1) (B) of the Constitution. Equally he relied on the Election Act 2011, Sections 22 as read with regulations 47 and Section 74 of the said Act. He further alleged contravention of Leadership & Integrity Act 2012, the Oaths and Statutory Declaration Act, Independent Electoral Commission Act.
5.It is the Petitioner’s case that there was and there are ongoing violations of the Constitution and he moved the Court pursuant to Article 165(3) and d(ii) as read with Article 23(1) of the Constitution.
6.The main gist of the Applicant’s case is the qualification of the 1st Respondent for nomination based on the threshold provided for in Article 180 as read with Article 193(b) of the Constitution and Section 22 of the Election Act as read with regulation 47 of the Elections (General) Regulations 2012. Secondly The Petitioner challenges the 1st Respondent’s candidacy based on Chapter Six of the Constitution as read with the Leadership & Integrity Act in reference to the 1st Respondent academic qualifications as presented to the 2nd Respondent for the current nomination visa vis the certificate of a Bachelor’s degree previously presented to the 2nd Respondent in a previous nomination.
7.In the substantive Petition the Applicant urges that the aforesaid Constitutional violations are so gross as to warrant revocation of the nomination certificate issued and seeks for relief as follows;a.A declaration that the 1st Respondent does not possess valid academic qualifications to contest for the position of 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 and clearance while the 1st Respondent 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 his 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;SUBPARA 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 Gloucestershire 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.iii.The 1st Respondent noting that his Bachelor’s degree from University of Gloucestershire was challenged for among other reasons that he got it at the age of 15 years, he fraudulently changed the year of birth on his Identity Card by 10 years to show that he obtained his Bachelor’s degree at the age of 25 years and not 15 as it was before.g.An order compelling the 2nd Respondents to disclose information presented by the 1st respondent and which were 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.
8.In support of the Petition he swore an affidavit dated 23rd June 2022, stating that he is aware that the 1st Respondent received the nomination papers from the 2nd Respondent on the 4th of June, 2022 which included a Master’s degree certificate in Islamic Banking, Finance & Management from University of Gloucestershire in line with Section 22 of the Elections Act, 2011 and Regulation 47 of Regulations 2012 and based on the submitted documents the 1st Petitioner was cleared to vie for the seat of Governor Garissa County.
9.That having knowledge that the 1st Petitioner did not meet the Educational 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 2nd Respondent that he was time barred. His Lawyer wrote a letter to the 1st Respondent’s chairman on the 20th of June 2022 seeking for hearing of the Complaint but to date no response has been received.
10.Further he states that he is aware that the 3rd Respondent has laid a process where degrees, diplomas and certificates conferred by foreign universities and institution, are to be recognized and the degrees or qualifications are equated by the 3rd Respondent based on their standard and guidelines.
11.The Petitioner states further that he is certain that the 3rd Respondent did not apply its standards and guidelines for institutional recognition as the 1st Respondent has no valid 1st degree since the Bachelor’s degree from the University of Karachi has been challenged. Further that the practice in Kenya is that before a Master’s degree is earned one must acquire a Bachelor’s degree.
12.Further the Petitioner states that the 3rd Respondent did not properly verify and authenticate the academic qualifications of the Petitioner which he presented to the 4th Respondent for purposes of vying for a Gubernatorial Seat for the County of Garissa, leading to Petitioner writing to the 3rd Respondent, he is yet to receive a response.
13.He deposed further that since the 1st Respondent exchanged his bachelor’s degree with an invalid Master’s degree which was not authenticated in a bid to secure clearance from the 1st Respondent, to vie for the gubernatorial elections for Garissa County he does not possess the requirements expect of a leader by Chapter Six of the Constitution as read with Leadership & Integrity Act.
14.In his two Supplementary Affidavits dated 4th July, 2022 and 5th July, 2022 the Petitioner informed the court that he got information and evidence challenging the authenticity of the 1st Respondent’s academic qualification on the 15th of June, 2022.
15.That he is aware that the educational certificates presented by the 1st Respondent to the 2nd Respondent in 2017 are different from those presented for purposes of the forthcoming elections. That in 2017 the Petitioner submitted a Bachelor’s degree in Commerce from the University of Karachi issued in 1984 and it is on the basis of the same that he was cleared. Further that the 3rd Respondent had not verified the degree then but issued a letter recognizing the same as a result questions arose on the same. Further the 1st Respondent’s identity card indicated his date of birth as 1st January 1969, which cast further doubts to the authenticity of the Karachi degree as it appeared that he had obtained the same at age 15.
16.The Petitioner stated further that he is aware the 1st Respondent could not use the Bachelor’s due to the questions raised in 2017 and opted to supply a Master’s degree instead.
17.He further posits that the fact that the 1st Respondent changes his degree certificate in a bid to get clearance from the 1st Respondent every election cycle this raises questions to his integrity and whether he possesses the requisite educational, moral and ethical requirements in line with Chapter Six and the Leadership & Integrity Act.
18.The Respondents objected to the petition and filed their respective replying affidavits denying the allegations of the Petitioner.
19.On the part of the 1st Respondent he filed a replying affidavit dated 4th July, 2022 and supplementary affidavit dated 14th July 2022.
20.In the said affidavits the 1st Respondent took issue with the jurisdiction of the court, according to him the matters were hinged on a pre-election issue.
21.Further he stated that the Petitioner raised several issues yet he did not back the same with evidence. The matters raised are speculative, full of conjecture and hearsay.
22.Further he stated that his political party, the Orange Democratic Movement Party verified his Educational credentials before issuance of a nomination certificate in line with the nomination requirement. That he presented his papers for clearance to the 1st Respondent and was cleared on 4th of June 2022 by the 4th Respondent having met all the constitutional and statutory requirements.
23.As relates to his academic papers he averred thata.On 13th November 2012, he graduated with a Master’s degree from the University of Gloucestershire and was awarded a Master’s degreeb.On 3rd June 2022, the 3rd Respondent recognized the University and the Qualification awarded.c.That in 1993 he was elected an Associate of the Institute of Bankers Association after successfully completing the following exams with a pass grade;1.Law relating to banking services.2.Monitory & financial systems.3.Accountancy.4.Management & banking.5.Investments.6.Trade function – payment & Services7.Branch banking law & practice.8.Marketing.
24.He contended further that the completion of associateship examination as set above is recognized professionally as equivalent of a university 1st degree and duly recognized as such and accepted by universities as a gateway to a master’s degree.
25.Further he states that he is a qualified Kenyan Banker, writer and politician, he has previously served as a senior Vice President and Head of Sharjah Islamic Bank’s Investment & International Banking Division, acted as the Managing Director/Chief Executive of the First Community Bank and has co-authored the first book on Sukur and the Petitioner has created a false narrative that he does not have a degree in a bid to stop the 2nd Respondent for forwarding his name for purposes of printing the ballot papers.
26.The 1st Respondent denies being in violation of Chapter Six of the Constitution or Leadership & Integrity Act and states that the Petition is based on blatant lies, it is malicious, unmerited with the sole purpose maligning his name and misleading the court.
27.The 1st Petitioner avers further that he was born on the 5th of June 1959 and not 1st January 1969. That in 1978, he applied for a National Identity Card and which was issued with an erroneous date of birth. That the records at the Registrar of Persons indicate the correct date of birth.
28.In April 2017, he applied for re-issuance of his Identity Card and accordingly was issued an Identity Card NO. 0028359 a Serial No. 246987460 issued on 12th September 2017 with correct details. Previously he had I/D No. 700317718 which had a typographical error. He is also holder of passport No. A2387872 which clearly gives his birth date and year.
29.That he participated in the 2013 general elections, where he met all the required qualifications and was duly nominated and cleared for the gubernatorial elections and duly elected as the first governor of Garissa County.
30.It is his position that the Applicant has failed to demonstrate any particular violation of his constitutional rights and has also failed to bring the case within the confines of Article 22 of the Constitution.
31.The 2nd & 4th Respondents filed two affidavits, the first dated 4th July 2022 and the second 14th July 2022 both sworn by Chrispine Owiye the Director Legal and Public Affairs of the 2nd Respondent.
32.In the first affidavit the said officer challenged the mandate of the court stating that the issue before the court is a pre-election dispute and governed by Article 88(4) (d) and (e) of the Constitution as read with Section 74(1) of the Election Act which give the mandate to resolve all pre-election disputes to the 2nd Respondent.
33.That the 1st Respondent presented before the 4th Respondent all the requisite documents indicating that he had met all academic, moral and ethical requirements as set out in the Constitution and the Elections Act and fit to run for office contrary to the Petitioner’s allegations and the said academic papers had been authenticated by the 3rd Respondent.
34.In the second affidavit it is deposed that for the year 2022, the 1st Respondent presented to the 4th Respondent a degree certificate from the University of Gloucestershire for Master of Arts in Banking, Finance and Management accompanied by a letter dated 3rd June 2022 written by the 3rd Respondent confirming recognition of the said university.
35.He further explained unavailability of 2013 documents is due to storage challenges as they only store documents for one election cycle and cannot therefore supply documents for the 2013 elections.
36.The 3rd Respondent only entered appearance and did not file any pleading in opposition.
37.The matter was canvassed by way of submissions. Counsel for the Petitioner and 3rd Respondent submitted orally, the 1st, 2nd and 4th Respondents’ counsel filed written submissions and highlighted on the same. The court is highly indebted to counsel for the respectful parties for their quick action of filing their pleadings and submissions in record time. The Court on its part had to rise to the occasion albeit a couple of days late due to the demand of other judicial duties. The rush was necessitated by the tight timelines that are the haul mark of this time; election time.
38.Counsel for the Petitioner submitted that there is a distinction between recognition of an institution and accreditation of academic qualification.
39.He submitted further that prayer (f) of the petition seeks for a declaration that the 1st Respondent has violated Chapter Six on Leadership & Integrity mainly Article 73 and 75. That Article 73 (2) (a) speaks to selection on the basis of personal integrity, competence, and suitability or election in free and fair elections. Article 73 2 (c) speaks to selfless service based on honesty. Article 73 (2) (d) speaks of accountability to the public.That the above demonstrates that the 1st Respondent fails the test of integrity as he does not hold minimum requirements. The said should be read together with section 3(2) (c) of Leadership and Integrity Act.
40.Further counsel contended that the 3rd Respondent only availed recognition of the university but has did not accredited the 1st Respondent’s degree.
41.Further that was an issue in 2017 in relation to the age of the 1st Respondent when he attained the bachelor’s degree from the University of Karachi as it appeared he qualified at age 15.
42.Though the 1st Respondent filed a supplementary affidavit explain why a similar date was entered in the declaration form. stating the date on the Identity Card was in error this cannot
43.Further counsel submitted that the 2nd and 3rd Respondents have a responsibility to investigate the compliance of the 1st Respondent with regard to minimal educational requirements which they failed to do.
44.Counsel submitted further that where the 2nd and 3rd Respondents fail to discharge their mandate the court should step in to ensure that educational, moral and ethical conditions are adhered to.Counsel posed a Question of what would happen if ex-facie the foreign documents are invalid and the 2rd and 3rd Respondents fail their legal mandate whether will the court turn a blind eye?He answered in the affirmative that the Court has the power and duty so to intervene to prevent a violation of nomination process by the Respondents.
Submissions by 1st Respondent
45.Counsel for the 1st Respondent identified 3 issues for determination namelyi.Whether the petition discloses any cause of action that has been violated.ii.Whether the 1st Respondent was lawfully nominated &iii.Who pays the costs.
46.Counsel urged that neither the petition nor the application against the 1st Respondent show a cause of action or a right violated or infringement against the Petitioner. Counsel in this regard relied on the case of Progressive Welfare Association of Malindi & 3 Others vs County Government of Kilifi & 4 Others  eKLR.
47.He submitted further that the 1st Respondent qualified to be nominated and has already been gazette. Further he contended that the petition before court does not meet the threshold as expounded in Mumo Mutemo vs Trusted Society of Human Rights Alliance & 5 Others  eKLR.
48.That the averments of the Petitioner do not disclose any cause of action; they are mere allegations without any force of evidence or law.
49.Counsel submitted that in invoking Article 22 of the Constitution the Petitioner failed to particularize with specificity as to how, who and when the rights were violated. The Petitioner has not been denied to vote, to register or participate on the forthcoming elections. In support of this assertion reference was made to the case of Elizabeth vs President Court of Appeal & Another (2 of 2009)  SCCC 2
50.On the second issue whether the 1st Respondent was lawfully nominated it was submitted that though the position of the Petitioner is that the 1st Respondent has no degree therefore not qualified, the 1st Respondent presented a Master’s degree and a letter from the 3rd Respondent confirming recognition of the said degree. The case of Gole Nicholas vs Loi Kageni Kiryapawo SCEPP No. 19 of 2007 was referred to.
51.The court was informed that the 1st Responded graduated on 13th November 2012 with a Master’s degree in Islamic Banking, Finance and Management from the University of Gloucestershire and awarded a Master’s degree.
52.On 3rd June 2022 the 3rd Respondent confirmed through a letter that the said university is recognized and the qualification awarded also recognized.
53.That in addition on 6th of June 1994 the 1st Respondent passed exams in Banking Services, monetary & financial systems, accountancy, management in Banking, Investment, Trade Finance – payments & services, Branch Banking Law and Practice & Marketing and was elected as an associate of the banker’s institute.The court was referred to the case of Microsoft Corporation vs Mitsumi Garage Ltd  1 EA 129.
54.Further, Counsel asserted that the degree referred to under Section 22 of the Elections Act can be a bachelor’s degree, a master’s degree or a doctorate degree. The Act does not specify. Court was referred to Janet Ndago Ekumbo Mbete v IEBC & 2 Others  eKLR.
55.Further it was submitted that there is no evidence that the papers presented to the 4th Respondent are a forgery or that they do not exist. The onus was on the Petitioner to show that the 1st Respondent does not possess academic qualifications.In Joy Kabatsi Kafura vs Anifa Kawooya & Another SCEPP No. 20 of 2007 the court addressed the issue of presenting higher qualification as is required.
56.It was submitted further that scrutinizing of academic documents is the mandate of one body, clearing for election the mandate of another body and the court should not interfere where there is no evidence of any wrong doing as was stated in Justus Kariuki Mate & Another vs Martin Nyaga Wambora & Another (2017) eKLR and Diana Kethi Kilonzo & Another vs IEBC & 10 Others (2013) eKLR.
57.Further, the Petitioner has not placed any iota of evidence to support any allegations made, he has not proved any prejudice that he is likely to suffer and to the contrary the 1st Respondent who qualifies and was cleared to vie for the Gubernatorial seat for Governor Garissa county stands to suffer. Court was referred to the case of Ann Wambui Nderitu vs Joseph Kiprono Ropkoi & Another (2005) 1 EA 334 which was relied upon in the case of Mourine Mukonyo vs Embu Water and Sanitation Company (2020) eKLR.
58.As to costs, it was submitted that the Petitioner should bear the costs since the petition is not bona fides yet he approached the court in the name of public litigation. The court was referred to the case of Jennifer Shamalla vs Law Society of Kenya & 15 Others (2017) eKLR and a decision of Indian Supreme Court relied upon in the Shamalla case, Ashok Kumar Pandey vs. State of West Bengal AIR 2004 SC 280.
2nd and 4th Respondents Submissions
59.Seven issues were identified by the 2nd and 4th Respondents as follows;a.Whether the 2nd and 4th Respondents violated Article 88 (1), & 180 of the Constitution and Section 22 of the Election Act by issuing a nomination certificate to the 1st Respondent.b.Whether the Honourable court has the jurisdiction to usurp the mandate of the 3rd Respondent in its function of recognition and accreditation of foreign qualifications.c.Whether the Petitioner discharged the burden and standard of proof in alleging that the master’s degree by the 1st Respondent was obtained through fraud or forgery.d.Whether the issues before the court are pre-mature.e.Whether the Honourable court can usurp the authority of constitutional bodies with regard to investigations and prosecution of criminal offences.f.Whether the petition meets the requirement of precision required in filing Constitutional petitions.g.Whether the Petitioner should be granted access to academic documents submitted by the 1st Respondent for clearance in the 2013, 2017 and do 2022.
60.In summary it was submitted that the 1st Respondent complied with all the legal requirements for clearance to vie for a gubernatorial candidature by filing the nomination form No. 17, self-declaration form 19, EACC self-declaration form, and resented a master’s degree certificate recognized by the 3rd Respondent.
61.Further, in clearing the candidates, the 2nd and 4th Respondents do not have the mandate to verify the authenticity of the documents and more particularly the academic qualifications once endorsed by the 3rd respondent. The cases of Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others eKLR, Dennis Gakuu Wahome Vs IEBC & 3 others Petition No. 321 of 2022 (unreported). EACC vs Granton Graham Samboja and Another (2021) eKLR, Robert Uri Dabaly Jimma vKenya School of Law & another  eKLR.
62.Further counsel urged that the court should decline the invitation by the Petitioner to determine whether the 1st Respondent possesses valid academic qualification to contest for the position of a County Governor and issuing the 1st prayer in the petition.
63.Court was urged that Section 5(1)(g) of the University Act, 2012 places the duty of recognition of foreign academic papers upon the 3rd Respondent and Section 85 of the Universities Regulations 2014 gives the opportunity to anyone aggrieved by the decision of the 3rd Respondent to write to the commission, thereafter to the Cabinet Secretary. Reference was made to the case of Daniel Talengo Kiptunen vs republic & 3 others (2013) eKLR.
64.It was also submitted that the burden of proof in elections matters was settled by the Supreme Court in Election Petition No. 1 of 2017 - “The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one of the other parties to establish a case or to establish the facts upon a particular issue.”
65.Further Section 107 of the Evidence Act places the burden of proof on a party who desires the court to give judgment or any legal right or liability on the existence of facts which he asserts to prove that those facts exist. Further reference was made Raila Odinga 2013 case.Further where a criminal charge is linked to an election issue the burden of proof to be applied is beyond reasonable doubt - Raila 2013 and Khatib Abdalla Mwashetani vs. Gideon Mwangangi Wambua & 3 Others.
66.The issue before the court on the authenticity or forgery of the academic papers it was submitted is prematurely before the court, as the relevant investigative bodies have not concluded their investigations. Reference was made to Daniel Ogwoka Manduku vs D.P.P & Another (2019) eKLR.And such an issue as forgery falls within the purview of the criminal justice system.
67.Counsel further asserted that the petition does not meet the precision threshold in the Anarita Karimi case. The petition does not set with precision the Articles of the Constitution that have been violated and how the violation has affected the rights of the Petitioner. Reference was made to the case of Godfrey Paul Okutoyi & Others vs Habil Olaka & Another  eKLR.
68.Further the 2nd Respondent is mandated with the authority of safe keeping of electoral materials as provided by Article 86(a) of the Constitution as read with Regulation 86 and 93 of the Elections (General) Regulations 2012, rule 16 (3) of the Elections (Parliamentary & County Election) Rules 2017 and Regulation 17 of the Elections (technology) Regulations 2017).Materials are to be maintained for only 3 years unless for exceptional circumstances.
3rd Respondent’s Submissions
69.Counsel for the 3rd Respondent associated with the submissions made by counsel for the 2nd and 4th Respondent.
Analysis and Determination
70.The court has carefully considered the pleadings, submissions and authorities relied upon by the parties, having so considered, the issues before court for determination are three namely;a.What is the case before the court; whether jurisdiction of the court was properly invoked.b.Whether the petition meets the required thresholdespoused in the Anarita case.c.Whether the nomination of the 1st Respondent by the 2nd and 3rd Respondent to vie for the position of Governor Garissa County was a violation of the Constitution.d.Costs
71.The Petitioner moved this court pursuant to Articles 165(3) (d) (ii) as read with Article 23 (1) of the Constitution. In paragraph 23 and 24 of the petition the Petitioner urged that no one is above the law and the court has the mandate to intervene to promote and protect the principles, values and purposes of the Constitution by addressing any violation of the Constitution.
72.In particular, the Petitioner pleaded violation of Chapter Six of the Constitution as read together with the Leadership and Integrity Act and Articles 193(b) of the Constitution as he alleged that the 1st Respondent failed to satisfy the educational, moral and ethical requirements.
73.It can be said that the gist of the Petitioner’s case is that the Respondents failed the provisions of Chapter Six and the Leadership & Integrity Act ignored the threshold provided for in Article 180 as read with Article 193 (3) of the Constitution.
74.Article 88(4) (d) (e) of the Constitution and section 74(1) of the Elections Act places the responsibility of conducting and supervising elections on the 2nd Respondent. As regards the matter before court, Regulations of the process by which parties nominate candidates for elections, and the resolution of pre-election disputes as a mandate of the 2nd Respondent in the 1st instance.
75.As stated in an earlier ruling where the Respondents challenged the jurisdiction of this court, that this court recognizes the mandate bestowed by the Constitution and statute on other bodies more so the 2nd Respondent and the court is guided by several authorities as cited by the parties such as; Samuel Kamau Macharia & Another vs KCB & 2 Others  eKLR, Moses Mwicigi & 14 Others & IEBC  eKLR and Geoffrey Muthinja Kabiru & 2 Others  eKLR
76.The court also considered the provisions of Article 22, 23 and 165 of the Constitution that stipulates
77.Article 165 (3) Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)……….(c)……….(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
78.Further the court was guided by the case of Mohamed Abdi Mohammed vs Ahmed Abdullahi Mohamed & 3 others; Ahmed Ali Muktar (I.P) 2019 eKLR where the Supreme Court in discussing the mandate of the IEBC, in vetting process of nominees for elective positions, the mandate of the election court, fortified the place of the High Court in matters arise during the process of elections under Article 165 of the Constitution.The apex court placed the jurisdiction of the High Court under Article 165 to include preservation of the authority of the Constitution.
79.The moment the Petitioner cited violation of Chapter 6 of the Constitution as read with Leadership and Integrity Act and as considered alongside Articles 180 and 193 (1) (b) the jurisdiction of this court kicked in.
80.Matters pre-election are determined by the 1st Respondent or its organ; the Dispute Resolution Committee and/or the Political Parties Tribunal. This in itself however does not oust the jurisdiction of this court in the application, interpretation and protection of the Constitution as that indeed is a mandate of this court. Article 10 binds all state organs, public officers and all persons to national values and principles of good governance.
81.Chapter 6 of the Constitution - Leadership and Integrity requires that public trust be exercised inter alia in a manner that is consistent with the purpose and objectives of the Constitution. The guiding principles of leadership and integrity to include selection on the basis of personal integrity, competence and suitability on election in free and fair election.
82.The question of integrity in leadership has been an elusive issue which state agencies and entities shy away from as it appears to be a strange animal that we fear to confront or to dismantle. As it were the primary and ultimate organ in the protection and implementation of the constitution is none other than the hub of justice, the seat of justice; the court. The mandate of upholding and protecting the Constitution squarely lies with the court.
83.The issue in question in view of this court was rightly placed before it, the contestation is whether the violation of the Constitution; the question of integrity and credibility of the 1st Respondent as alleged was proved to the required standard.
84.Before delving into whether the questions placed before the court were proved the court will consider whether the petition meets the necessary threshold; the precision principle.
85.As indicated earlier the court was moved pursuant to Articles 22, 23 and 165 of the Constitution among other provisions.
86.There is submission on the part of the Respondents that the petition before the court fails the precision test as espoused in the case of Anarita Karimi Njeru vs Republic (1979) KLR 154
87.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 referred to an English case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 which holds true today as follows
88.The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (popularly referred to as “The Mutunga Rules”) also make provision to the contents in Rule 10 thereof.
89.Further the Supreme Court in Commercial Bank of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others (2014) eKLR stated;
90.In considering the petition, it sets out the legal foundation of the case, facts relied upon and links the same to Articles of the Constitution allegedly violated which the court finds to have met the precision principles as set above.
91.As to the clearance of the 1st Respondent, the evidence placed before the court by both sides is that on the 4th of June, 2022 armed with a master’s degree certificate in Islamic Banking, Finance and Management from the University of Gloucestershire and a letter from the 3rd Respondent recognizing the university and accrediting the degree, with a National Identity Card alongside other requisite forms and papers the 1st Petitioner presented his papers before the 4th Respondent who verified the same against a known check list in his possession, confirmed that the papers are in conformity with the Constitution and statute and cleared the 1st Petitioner as a candidate eligible to vie for the seat of Governor Garissa County.
92.Article 180 (2) of the Constitution provides that to be eligible for election as a County Governor, a person must be eligible for election as a Member of County Assembly.Article 193 (1) (b) states that a person is eligible for election as a Member of County Assembly if he satisfied any educational, moral and ethical requirements of the Constitution or an Act of Parliament.
93.Section 22 of the elections Act reiterates the qualifications as set under the Constitution, in addition such a person must hold a post-secondary school qualification recognized in Kenya, & notwithstanding 1 (b) for a Governor or Deputy Governor they qualify only if the person is a holder of degree from the university recognized in Kenya.
94.Based on the documents placed before the 4th Respondent and without any question or complaint issued the 4th Respondent cleared the 1st Respondent.
95.Up to this this point on facts above the court finds no fault, neither a violation of either the Constitution or statute on the part of the Respondents.
96.On the allegations by the Petitioner that the Master’s degree certificate was fraudulent as the 1st Respondent did not possess a 1st degree (bachelor’s degree) and could not therefore qualify to attain the Master’s degree; Secondly, the 3rd Respondent did not investigate the Master’s degree before recognizing the institution and accrediting the degree, thirdly that the 2nd and 4th Respondent did not interrogate the Master’s degree and both the 2nd and 3rd Respondent failed their respective mandate leading to a violation of the Constitution, and on the part of the 1st Respondent, that he placed before the 4th Respondent a fraudulent document, knowing well that he did not possess a 1st degree as the first degree he possessed in 2017 was a forgery, he had obtained a second Identity Card fraudulently aiming to obtain a clearance for the 2022 general elections, all this which brought to question of the 1st Respondent’s integrity and credibility and his action failed the credibility in line with Chapter 6 and the Leadership and Integrity.
97.In considering whether the above was proved the court considered that Section 107 (1) of the Evidence Act places the legal burden to prove a fact exists on the proponent of the said fact.
98.In the case of Mourine Mukonyo Vs Embu Water and Sanitation Company (2020) eKLR the court restated that legal position relied on in the case of Anne Wambui Nderitu vs Joseph Kiprono Ropkoi & Another (2005) 1 EA where the Court of Appeal had this to say on this subject;
99.The legal and evidential burden from the onset lies on the Petitioner he has to lay prima facie evidence before the court. In this instance it was expected that the Petitioner would place before the court evidence that;i.The 1st Petitioner was armed with a fraudulent degree from Karachi University which he used to obtain clearance in 2017.ii.The 1st Petitioner fraudulently changed his Identity Card from the one he presented in 2017 to what he presented in 2022.iii.The 1st Petitioner did not possess a valid master’s degree as the one he possessed was fraudulently obtained.iv.The 1st Respondent contravened provisions of the Constitution in particular Chapter 6 of the Constitution, as read with the Leadership and Integrity Act, Article 180 (1) as read with 193 (b) of the Constitution.v.The 2nd, 3rd and 4th Respondent violated similarly the above Articles of the Constitution by failure to carry out their constitutional and statutory mandates.
100.The Petitioner did not place any evidence before the court to prove that the academic papers relied upon by the 1st Respondent in the 2017 General Election were a forgery. The Petitioner relied on hearsay and a newspaper cutting alleging that the academic papers were fraudulent as the 1st Petitioner could not have obtained a degree at the age of 15.
101.Certainly the allegation that the 1st Petitioner had no degree as required to vie for seat of Governor was not discharged. The Petitioner’s allegation that the 2nd and 4th Respondents failed to verifying the degree certificate was not proved either, the Petitioner failed to challenge the decision of the 3rd Respondent to accredit the Master’s degree in the correct manner and in the right forum. These allegations appear to be at best based on speculation and ignorance of the processes and standards applied by the 3rd Respondent and which standards are applied world over to professional exams in particular those offered by the Chartered Institute of Bankers and the place of such professional exams in the hierarchy of higher diploma and professional certificate and their accreditation.
102.The Petitioner equally failed to place before the court any prima facie evidence that would have shifted the burden of proof to the 1st Respondent or any Respondent for that matter.
103.Placed before the court by the 1st Respondent nonetheless is evidence that his Master’s degree was validly obtained against a background of Associate examination in the field of banking and his admission as an Associate with the Chartered Institute of Bankers which exams were recognized by his university and the 3rd Respondent in accrediting the said degree.
104.The 1st Respondent has also reasonably explained the circumstances under which his initial Identity Card had a wrong date of birth and how he acquired a new corrected Identity Card that tallies with the information in passport.
105.The 2nd Respondent on its part produced the certificate of a degree in masters of Arts in Islamic Banking, Finance and Management dated 24th October, 2012 and a self-assessment declaration that th1st Respondent relied on in the 2017 elections and gave reasonable explanation as to why the records on 2013 were not available.
106.On the alleged violation of the Constitution no iota of evidence was placed before to prove fraud that would taint the image and character of 1st Respondent as to question his educational, moral or ethical standing.
107.To this end the Petition must fail.
108.As to costs, the court is persuaded, that the same must 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.
DATED, DELIVERED AND SIGNED IN GARISSA THIS 21ST DAY OF JULY, 2022.…………………………ALI-ARONIJUDGE