1.In his Petition against 23.6.22, against the Independent Electoral and Boundaries Commission, the Respondent, the Petitioner, Losikany James seeks the following orders:1.A Declaration be issued that the impugned part of paragraph (f), to wit, “For avoidance of doubt the nominee must be between 18-34 years of age for the term of Parliament” under General Requirements for Party Lists, in the said Gazette Notice No. 6378 published in the Kenya Gazette Vol. CXXIV No.101 on 3rd June, 2022 is unconstitutional, null and void ab initio.2.An order restraining the Respondent from rejecting Party Lists for failure to meet the requirement of being between 18-34 years of age for the term of Parliament as contained in the impugned part of paragraph (f) of Gazette Notice No. 6378 published in the Kenya Gazette Vol.CXXIV No. 101 on 3rd June 2022.3.An order of Certiorari be issued, calling into this court and quashing the impugned part of paragraph (f), to wit “For avoidance of doubt the nominee must be between 18-34 years of age for the term of Parliament” under General Requirements for Party Lists, in the said Gazette Notice No. 6378 published in the Kenya Gazette Vol. CXXIV-No. 101 on 3rd June,2022.4.Costs and interests thereof of this Petition.5.Such further, other and consequential orders as this Honourable Court may deem fit to make.
2.The Respondent is a constitutional commission established under Article 88(1) of the Constitution of Kenya, 2010, which has the mandate of conducting and supervising referenda and elections to any elective body as prescribed by the Constitution.
3.In preparation of the general elections to be held on 9.8.22 (now past), the Respondent published in Kenya Gazette Notice No. 6378 of 2022, notifying the general public of the law guiding party lists on nomination of members to the national assembly, the senate and county assemblies under Articles 97(1)(c), 98(1)(b)(c) and (d) and 177(1)(b) and (c) of the Constitution respectively, using proportional representation. The notice contained the general rules of submission of party lists and also the formula for allocation of seats from the party lists to be submitted. The notice further required political parties to submit their party lists to the Respondent, by 25.6.22.
4.The Petitioner who describes himself a public-spirited youth and a defender of the Constitution is aggrieved by paragraph (f) (paragraph(f)) of the General Requirements for Party Lists contained in the said notice which provides as follows:
5.The Petitioner aspires to be nominated as a member of the Narok County Assembly, under the United Democratic Alliance party (UDA). He was born 1.1.90 and is therefore 32 years old. The Petitioner stated that prior to the publication of Gazette Notice 6378 by the Respondent, UDA had pursuant to the UDA Nominations and Elections Rules, issued a “Party List Nomination Notice” on 19.5.22, inviting qualified party members to apply for nomination to the various entities. The said notice required that applications be submitted on or before 24.5.22.
6.In compliance with the requirements and the party notice the petitioner submitted duly filled application via UDA portal (https://leaders.uda.ke/plist) before the deadline imposed by the party. The Petitioner who is an active member of UDA and involved in youth activities, sought to nomination to the Narok County Assembly, to represent the youth as a special interest group in accordance with Article 177 (1)( c) of the Constitution. It is only after the lapse of the party’s deadline that the Petitioner learnt of Gazette Notice No. 6378.
7.It is the Petitioner’s case that what he refers to as a disclaimer in paragraph(f) will lock him out of the nominations on account of the fact that he will attain the age of 35 in 2025. The disclaimer reads:
8.The Petitioner is apprehensive because the Respondent is the Gazette Notice is categorical that it “May reject a nominee submitted by a political party for any elective post if not qualified.” Further at paragraph (u) of the Gazette Notice, the Respondent stated that it “shall within fourteen days of receipt reject any party list that does not comply.”
9.The Petitioner further contender that Gazette Notice No. 5735 of 2017 did not contain the impugned disclaimer. Paragraph (f) of that notice stated:
10.He further asserted that he has established that neither the Constitution nor the Elections Act has been amended to include the disclaimer. Accordingly, the introduction of the impugned disclaimer, is ultra vires the Constitution, the Statutory Instruments Act, the Elections Act and the regulations made thereunder. The Petitioner further contended that the impugned disclaimer is arbitrary, unreasonable, discriminatory and irrational as it fails to have due regard to Articles 260 and 177(1)(c) of the Constitution, Section 36(1) (f) of the Elections Act and Regulation 15(3) of the Elections (Party Primary Lists) Regulations, 2017.
11.Additionally, the Petitioner contended that he had a legitimate expectation at the time he applied for nomination by UDA that the Respondent would strictly comply with the Constitution and Regulations.
12.The Respondent opposed the Petition by means of a Preliminary Objection (PO) and Grounds of Opposition both dated 28.6.22 and a replying affidavit sworn on even date by Chrispine O. Owiye, the Director of Legal and Public Affairs of the Respondent. The PO which challenged the jurisdiction of this Court was dismissed vide a ruling on 19.7.22.
13.The Respondent opposed the Petition on the grounds that the Petition does not state with specificity which constitutional provision has been violated by the requirement of paragraph (f) or how the same is discriminatory. Further that the Gazette Notice is very constitutional and that the requirements of paragraph(f) echoes the Constitution, as Article 177(1)(c) prescribes that members of county assemblies shall include youth. The perceived limitation is a question of qualification as stipulated in the law. It was contended that when a person nominated to represent the youth attains 35 years of age, such person constitutionally ceases to be a youth and the seat is to be declared vacant. Accordingly, if this Petition is allowed, it will open a floodgate of petitions by persons who will have attained the age of 35 years before the end of the term of the incoming Parliament.
14.It was further contended that the Respondent is empowered by Section 34(6B) of the Elections Act to issue specific guidelines for party lists and so the Petitioner’s legitimate expectation is unwarranted. Additionally, the Respondent stated that the Petitioner did not exhibit UDA’s nomination rules to ascertain that they were in consonance with the law. Further, that the Petitioner and his party ran ahead of the Respondent’s calendar and relied on outdated regulations which had not taken into account the definition of a youth vis a vis the term of Parliament. The Respondent also faults the Petitioner for not demonstrating that he had applied to UDA for nomination and that he had been included in the party list to be presented to the Respondent. The Respondent urged that the Petition be dismissed with costs.
15.The matter herein involves the interpretation of the Constitution. And the Court must be guided by Article 259(1) which provides:1.This Constitution shall be interpreted in a manner that—a.promotes its purposes, values and principles;b.advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rightsc.permits the development of the law; andd.contributes to good governance.
16.Additionally, clause (3) of the Article requires that the Constitution be construed according to the doctrine of interpretation that the law is always speaking.
17.Parties filed their submissions which I have duly considered. The following are issues that fall for determination are as framed by the Petitioner and which were adopted by the Respondent:i.Whether the impugned disclaimer is ultra vires?ii.Whether the impugned disclaimer is discriminatory?iii.Whether the impugned disclaimer violates the petitioner’s right to a legitimate expectation?iv.Whether the impugned disclaimer is an arbitrary, irrational, unreasonable and unjustifiable limitation on the petitioner’s political rights?
Whether the impugned disclaimer is__ ultra vires?
18.The Petitioner contended that the Respondent arbitrarily amended Regulation 15(3) of the Election (Party Primaries and Party Lists) Regulations, 2017 by introducing an extraneous criterion, which flies in the face of Section 24(2) of the Statutory Instruments Act. The Petitioner further submitted that a holistic reading of Articles 97(1)(c), 98(1)(c) and 177(1)(c) and Section 36(1)(f) of the Election Act demonstrates that there is no requirement that a youth nominee must be between 18-34 years of age for the entire term of the next Parliament. Accordingly, the requirement in paragraph(f) in this regard, is ultra vires those provisions.
19.The Respondent was categorical that the part of paragraph(f) which the Petitioner is challenging is neither a disclaimer nor a proviso but an explanation of the substratum of Articles 177(1)(c) and 260 of the Constitution. It affirms that the Party Lists requirements as set out in the Gazette Notice are within the confines of the Constitution and the law and are not ultra vires.
20.Black’s Law Dictionary Tenth Edition defines ultra vires as:
21.The question that is Court must determine is whether in issuing the Gazette Notice, the Respondent acted beyond the scope of the power conferred upon it by law? Was the Respondent authorised by law to issue the Gazette Notice containing the requirements, including the new criterion, to be complied with by parties in submitting their party lists?
22.In order to determine this issue, it is necessary to look at the enabling law. Article 90 provides for the allocation of party seats in the in the national assembly, senate and county assemblies. The Article further provides that allocation shall be on the basis of proportional representation by use of party lists. Clause (2) makes it the responsibility of the Respondent to conduct and supervise the elections for those seats.
23.The Elections Act gives effect to the provisions of Article 90. Section 34 makes provision for nomination of party lists members while Section 35 provides for submission of party lists. Section 36 makes provision for allocation of special seats and re-allocation of special seats is provided for under Section 37 of the Act. Section 36(1)(f) relied upon by the Petitioner, provides:
24.Upon nomination of candidates to the national assembly, senate and county assemblies, political parties are required to submit to the Respondent a list of candidates so nominated. Section 34(6B) has the conferred upon the IEBC the necessary power to make guidelines in respect of party lists, as follows:
25.The Gazette Notice under challenge is expressed to have been issued pursuant to the powers conferred upon the Respondent by inter alia Article 90 of the Constitution, Sections 34, 35, 36 and 37 of the Act.
27.As demonstrated above, the making of the requirements set out in paragraph(f) relating to the age qualification of the youth is within the powers conferred upon the Respondent under the cited constitutional and statutory provisions pursuant to which they were published.
28.With such clear legal provisions, I find the argument that the Regulations are ultra vires to be hollow. The Respondent acted within its constitutional and statutory mandate to issue the Gazette Notice setting out the guidelines to be complied with by political parties, in preparation of party lists. I find nothing to remotely suggest that the Respondent acted ultra vires in issuing the Gazette Notice.
Whether the impugned disclaimer is discriminatory
29.It is the Petitioner’s submissions that the impugned disclaimer is restrictive and grossly violates the Petitioner’s right to be considered for nomination to the Narok Country Assembly, as a youth. Citing Article 27 of the Constitution, the Petitioner contended that the Respondent has a constitutional obligation to treat all youth equally and accord them equal protection and benefit of the law. He went on to contend that the impugned disclaimer has the effect of excluding all youth born before August 1993 from nomination for the reason that they will attain the age of 35 years before the expiry of the term of the next Parliament. The result is discrimination against an entire generation of youth including the Petitioner, on account of their future age by denying them eligibility for nomination to the various seats, thereby limiting their political rights.
30.The Respondent’s position on this issue is that the requirements in paragraph(f) are as set out in the Constitution and other laws. The Respondent argues that the qualifying qualification for nomination of an individual remain applicable for the rest of the term of Parliament. Any disqualifying character attained after election renders an individual disqualified. It is the Constitution and not the Respondent that dictates that the future age will disqualify the Petitioner. As such, there is nothing discriminatory in the requirements. It is pure practical application of the law and not differential treatment.
31.As I consider the complaint by the Petitioner, it is fitting to look at the constitutional definition of youth. Article 260 defines youth as:
32.Flowing from this definition, it is not in doubt that youth means a person between 18-34 years of age.
33.Article 97 makes provision for membership of the National Assembly. Clause (1)(c) thereof provides for nomination of representatives of special interest groups including youth, persons with disabilities and workers as follows:
34.Article 98(1)(c) make provision for nomination of youth to the Senate as follows:(1)The Senate consists of-(c)two members, being one man and one woman, representing the youth.
35.Similar provisions regarding the county assemblies are contained in Article 177(1)(c):(1)A county assembly consists of-(c)the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament;
36.It is clear from the foregoing provisions that when the people of Kenya gave to themselves Constitution of Kenya, 2010, they were very intentional about the representation of the youth in the National Assembly, Senate and in County Assemblies. Recognising that the youth may not have the resources to successfully run for elective office, the Constitution made provision for their representation through their nomination, in the foregoing provisions.
37.Paragraph(f) of the Gazette Notice which contains the requirements for a candidate seeking nomination as a youth is reproduced below:
38.The Petitioner is aggrieved by the part that of paragraph(f) that states:
39.The Petitioner contends that states that the Respondent introduced an extraneous criterion which was not in the 2017 regulations. He contended that this criterion was discriminatory and relied on the case of Jared Juma v Kenya Broadcasting Corporation & 3 others  eKLR where Nduma, J. stated:
40.I have considered the cited case and note that the 1st respondent therein had in an advertisement, placed the age requirement for the position of managing director as being below 45 years. This was not based on any law or public policy. The Court found that the requirement was grossly unreasonable as to amount to discrimination on grounds of age contrary to Article 27(4) of the Constitution.
41.In the present case, however, the age requirement is anchored in Article 260 of the Constitution which defines youth as a person between the age of 18-34 years. Further youth as special interest group are to be represented by one of their own. This then means that a youth will only be eligible for nomination if such youth remains a youth till the end of the term of Parliament or of the county assembly, as the case may be. A youth who will cease to be so during such term will not qualify. In this regard, such person will be treated differently from a person who is a youth at nomination and remains so till the end of the term of Parliament or county assembly. This different treatment does not amount to discrimination.
42.In this regard, I am duly guided by the holding in the case of Kenya Medical Research Institute v Samson Gwer & 8 others  eKLR, where the Court of Appeal stated:It would be ingenuous for one to suppose that the equality contemplated by the Constitution leaves no room for difference and seeks absolutism. Rather, as Judge Tanaka famously stated in the South West Africa Case  ICJ REP, equality does not mean;
43.The intention of the people of Kenya as set out in Articles 97(1)(c), 98(1)(b)(c) and (d) and 177(1)(b) and (c) of the Constitution was that special interest groups would be represented by one of their own in the various assemblies. The women are to be represented by their fellow women, people with disabilities by one of their own and people in cultural minorities by one of their own. A similar intention applied to the youth. They are to be represented by one of their own. Representation is for the entire duration of the term of Parliament or the county assembly, as the case may be. Once a person who has been nominated and then elected, attains the age of 35 years, he ceases to be a youth and his tenure as a member of Parliament or county assembly becomes untenable. The question that would then beg is, if such a person were to remain a member of Parliament or county assembly, which special interest would he be representing? Such a state of affairs would result in an absurdity and an illegality. Indeed, the youth would be disenfranchised by being represented by a person who has ceased to be one of their own. Further, the principle of universal suffrage based on the aspiration for fair representation and equality of vote stipulated in Article 81(d) of the Constitution< would be violated.
44.The fact that the Petitioner is at present within the age bracket of 18-34 years does not qualify him for nomination if he will not remain within the said age bracket during the entire term of the county assembly to which he aspires to be nominated. While his being excluded amounts to different treatment from a youth who remains so for the duration of the term of the county assembly, it does not amount to discrimination.
45.In the Kenya Medical Research Institute case (supra), the Court went on to state:The Court concluded:
46.In the present case, there is a clear and reasonable distinction between the Petitioner, who will not remain a youth during the term of the county assembly and a youth who will remain so during the said term. As such, there is a reasonable explanation for treating the Petitioner and other youth differently. This different treatment does not undermine the constitutional guarantee that very person is equal before the law and has the right to equal protection and equal benefit of the law. The different treatment does not also fall within the prohibited categorization under Article 27(4), of the Constitution which provides:
47.In the end, I find and hold that the paragraph(f) simply restates what is provided in Article 260 of the Constitution and is not in any way discriminatory.
Whether the impugned disclaimer violates the petitioner’s right to a legitimate expectation
48.The Petitioner submitted that the Respondent created a legitimate expectation that he and every other youth would be eligible for nomination for the special seats as long as they were between the age of 18 and 34 years at the time of nomination. This legitimate expectation was created through representation and conduct during the previous general elections in 2013 and 2017. The Petitioner contends that it was on the basis of the requirements in Kenya Gazette Notice No. 5735 published on the 12.6.17 which did not have the new criterion, that he applied for nomination this year with the expectation that the Respondent would apply the same criteria it used, in the previous general elections without the impugned criterion regarding age.
49.According to the Petitioner, this new criterion is intended to lock him out and other youth who would turn 35 years during the term of the next parliament, which is was a flagrant violation of their legitimate expectation. The Petitioner concluded by submitting that the legitimate expectation is grounded on Regulation 15(3) of the Election (Party Primaries and Party Lists) Regulations, 2017. Further that there is no law that empowers the Respondent to consider the future age of youth nominees in determining their current eligibility.
50.The Respondent countered this by arguing that the principle of legitimate expectation is not available to the Petitioner. The Respondent contended that since 2013, electoral laws and regulations have undergone enormous changes through amendments, revisions and repeals and what was available in 2013 may not be available in 2022. As such, the Petitioner and his party UDA were at fault in relying on outdated regulations of 2017.
51.The doctrine of legitimate expectation has been discussed in all superior Courts which have addressed the guiding principles on the application of the principle of legitimate expectation. In the case of Republic v Kenya Revenue Authority Ex- Parte Aberdare Freight Services Ltd & 2 others  eKLR, Nyamu, J (as he then was) stated:
52.Similarly, in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR the Supreme Court stated:
53.In the Republic v Kenya Revenue Authority (supra) the learned Judge stated:De Smith Woolf and Jowell Judicial Review of Administration Action 5th Edition has brought out the principle very well at pages 567 and 568. In these wordsIn the same authoritative book (supra) at page 566 the following principle is also brought out“Purported authorization, waiver, acquiescence and delay do not preclude a public body from reasserting its legal rights or powers against another party if it has no power to sanction the conduct in question or to endow that party with the legal right or inventory that he claims”
54.For a legitimate expectation to arise the decision in question must affect a party by depriving him of same benefit or advantage that others have enjoyed. A legitimate expectation may arise where a party has been assured that a benefit or advantage by the decision maker will not be withdrawn without giving him first an opportunity to be heard.
55.In the instant case, although the Petitioner claims that he had a legitimate expectation that the requirements for nomination to represent the youth in the 2022 general elections would be the same as they were in 2013 and 2017, he has not placed any material before the Court to demonstrate that the Respondent had given him assurance that the regulations will remain the same. Further, the Petitioner and UDA ought to have awaited the guidelines by the Respondent to ensure compliance or in any event, UDA ought to have amended its requirements to be in conformity to those of the Respondent.
56.Further, a legitimate expectation cannot override the law. Section 34(7) of the Elections Act provides:
57.The law is clear that party lists must be valid for the term of Parliament. The previous requirements for party lists obviously did not take this into account. The fact that requirements for nomination for youth category in past elections did not have the new criterion does not preclude the Respondent as a public body from reasserting the correct position in law. The Respondent having recognised the previous errors was within its right to correct the same and issue the new criterion which is really an explanation as to who a qualifying youth is.
58.After becoming aware of the new eligibility criterion, the Petitioner ought to have checked the same against the law. Had he done so, he would have seen that his alleged legitimate expectation was not anchored in law and as stated, a legitimate expectation cannot override the law.
Whether the impugned disclaimer is an arbitrary, irrational, unreasonable and unjustifiable limitation on the petitioner’s political rights
59.The Petitioner contended that the new criterion in paragraph(f) is an arbitrary, irrational, unreasonable and unjustifiable limitation on the petitioner’s political rights.
60.As indicated herein, the impugned criterion is anchored in law. The definition of youth in Article 260 of the Constitution does not include a person who has attained the age of 35 years. Further, Section 34(7) of the Elections Act requires that party lists submitted to the Commission for purposes of nomination for the special seats shall be valid for the term of Parliament. If the Petitioner, who will attain the age of 35 years before the end of term, were to be included in UDA’s party list for nomination to represent the youth in the county assembly, his nomination would not be valid for the term of Parliament. Put differently, his nomination would be illegal as it will violate both the Constitution and the law. Accordingly, the contention that the impugned criterion is an arbitrary, irrational, unreasonable and unjustifiable limitation on the petitioner’s political rights does not hold water. Indeed, allowing the Petitioner and other youth who will cease to be youths during the term will limit the rights of all the youth in Kenya to be represented in the national assembly, senate and the county assemblies as the case may be, by one of their own.
61.In the end I find and hold that the Petition dated 23.6.22 lacks merit and the same is hereby dismissed. There shall be no order as to costs.