No conflict between articles 177(1) and 177(4) of the Constitution on election to the county assembly
The appellant filed a petition at the High Court challenging the date of the second general elections under the Constitution of Kenya, 2010 (Constitution) which was scheduled by the 2nd respondent, the Independent Electoral and Boundaries Commission (IEBC) on August 8, 2017. The first general elections after the promulgation of Constitution was held on March 4, 2013. As such, they claimed that holding the general elections on the aforementioned date would unconstitutionally reduce the Members of the County Assemblies (MCAs) term in office by a period of eight (8) months, taking into account that their term, as fixed by article 177(4) of the Constitution, was five (5) years. In essence, they contended that there was an apparent conflict between articles 177(1)(a) and article 177(4) of the Constitution.
The appellant sought among other reliefs a declaration that the term of office of the then existing MCAs was to end on March 5, 2018, being five (5) years from the date of the general elections held on March 4, 2013. The High Court partly allowed the petitions and found that the tenure of office for Members of Parliament (MPs) and MCAs was different. The High Court found that for MCAs, their position was muddied by article 177(4) of the Constitution. The court found that that was in conflict with article 177(1)(a) and that it was not possible to give effect to both provisions at the same time. The court thus found that the term of office for MCAs was plainly set out in articles 177(4) and 194(f) so that a county assembly was elected for a term of five years expiring at the end of the term of the assembly. The court upheld the election date of August 8, 2017.
Aggrieved by the decision, the 1st and 2nd respondents filed an appeal at the Court of Appeal while the 3rd respondent filed a cross appeal whose main contention was that it would be impossible to hold the following general elections on August 8, 2017 without limiting the term of county assemblies. The Court of Appeal found that the validity or legality of any the Constitution’s provisions could not be questioned by any court. The Court of Appeal further found that articles 177(1)(a) and 177(4) could not be construed to be in conflict or to contradict each other. The Court of Appeal allowed the appeal and set aside the judgment of the High Court. The appellant aggrieved by the decision of the Court of Appeal filed the instant appeal.
- Whether there was conflict between article 177(1) of the Constitution which provided for election to the county assembly to be on the same day as a general election of members of Parliament, being the second Tuesday in August, in every fifth year and article 177(4) of the Constitution which provided for that a county assembly was elected for term of five years.
- Whether the holding of the second general elections under the Constitution of Kenya, 2010 in August 8, 2017 was unconstitutional for reducing the terms of office for holders of elective posts below the five-year mark.
- What were the requirements to be met for one to appeal to the Supreme Court under article 163(4)(a) of the Constitution as of right in a matter involving the interpretation or application of the Constitution?
- Whether the High Court had the jurisdiction to determine matters on the enforcement of rights and fundamental freedoms touching on employment and labour.
- What was the nature of transitional and consequential provisions in the Constitution?
- What were the principles of application of the doctrine of legitimate expectation?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 163 - Supreme Court
(4) Appeals shall lie from the Court of Appeal to the Supreme Court—
(a) as of right in any case involving the interpretation or application of this Constitution; and
Article 177 - Membership of county assembly
(1) A county assembly consists of—
(a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
(4) A county assembly is elected for a term of five years.
1. The court’s appellate jurisdiction was set out in article 163(4) of the Constitution. So as to bring the appeal as of right pursuant to article 163(4)(a) of the Constitution, it had to be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the court. So that, where the dispute had nothing or little to do with the interpretation or application of the Constitution, the court under article 163(4)(a) would have no jurisdiction to entertain an appeal brought under that provision.
2. The instant matter was not a mere electoral dispute arising from or touching on an election. Joinder of the Salaries and Remuneration Commission was unnecessary as the issues before court were not on the amount of compensation to be paid to the MCAs for services rendered. Rather, they included questions of interpretation of articles 177(1) and 177(4) of the Constitution as well as whether MCAs were entitled to damages for the reduced term in office as a consequence of the election date in 2017.
3. The question of enforcement of rights and fundamental freedoms even touching on the employment and labour was within the competence of the High Court pursuant to article 22 of the Constitution. Articles 23 and 165 of the Constitution fortified that position as they were the provisions that gave the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights or fundamental freedoms in the Bill of Rights. Consequently, the appeal fell squarely within the ambit of article 163(4)(a) and the court had jurisdiction to entertain the appeal.
4. Article 2(3) of the Constitution stipulated that the validity or legality of the Constitution was not subject to challenge by or before any court or other State organ. The Court of Appeal was not determining the constitutionality or otherwise of articles 177(1) and (4) of the Constitution, only on the interpretation and application as regards the context of the instant case. To purport to question the validity of a constitutional provision was to question the very foundation of authority of the courts and was not only contra article 2(3) but also against the will of the people of Kenya.
5. Article 259 of the Constitution gave the approach to be adopted in construing the Constitution. By that provision therefore, the Constitution called for its holistic interpretation. No constitutional provision was more superior to the other. They all ranked equally and had to be all be interpreted and applied together to give them their full tenor and meaning. The court was guided by article 2(1) and (3) of the Constitution which provided for the supremacy of the Constitution over other laws and thereby its validity and legality were not subject to challenge by or before any court or other State organ.
6. The Constitution was consistent about the date of the general elections in various articles other than article 177(1). The election date was predicated on the election of MPs which was provided for under article 101(1). The designated date for general elections was not a set date but rather the second Tuesday in August, in every fifth year. Further, the Constitution provided that all elections for the positions of President, governor, senator, MPs and MCA had to be held on the day.
7. Kenya held its third general elections in 2022 since promulgation of the Constitution in August 27, 2010. The 2017 general elections were held in August 8, 2017. While the 2022 general elections were held in August 9, 2022, thereby fulfilling the requirement of holding general elections every five years. There did not exist a conflict between articles 177(4) and 177(1) of the Constitution, apparent or otherwise. If the two were to be put side by side, they could both be given effect at the same time as demonstrated by the continued election cycle.
8. The first general elections following promulgation of the Constitution were held on March 4 2013. That date was arrived at following the decision by the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others  eKLR. That case was distinguishable from the instant dispute as the main issue in contention therein was the first general election and not subsequent elections. The courts were not called upon to make a determination on harmonizing the terms of office of MCAs pursuant to article 177(1) and (4) contrasted with other elective posts.
9. The date of the first elections, March 4, 2013, was informed by the transition clauses of the Constitution. More specifically, section 9(1) of the Sixth Schedule to the Constitution which provided that the first elections under the Constitution were to be held within sixty days after the dissolution of the National Assembly. Vide Legal Notice No. 1 of 2008, the term of the National Assembly commenced in January 15, 2008 and ended on January 14, 2013. Hence, sixty days later, was March 4, 2013, achieving the first hurdle in transitioning the elections of Kenya from the old constitutional dispensation to the Constitution of Kenya, 2010.
10. The transitional provisions of the Sixth Schedule to the Constitution were only for a limited period of time and once they served their purpose, the nation reverted to the permanent provisions of the Constitution. On general elections, the date stipulated in articles 101(1), 102(1), 136(2)(a), 177(1)(a) and 180(1) was reverted to. That was such that, after the first general elections was held, IEBC then had a constitutional duty to apply those provisions of the Constitution with regard to the future elections. That was not a simple duty, as IEBC had to decide between holding the elections in August of 2018, five years after 2013 or alternatively in August of 2017. IEBC elected to hold the second general elections in August 8, 2017. that date fell short of the five-year mark by eight (8) months. That was not just for the MCAs but for all elective positions.
11. Perhaps what informed IEBC’s decision regarding the election date in 2017, was to ensure the terms in office for all elected officials would not fall outside the constitutionally stipulated five years. Holding the election in August 2018 would have meant that the term in elective office for all officials would have been over and above the five-year timeline by approximately five months. The court could infer that IEBC was trying to avoid generating a gap whereby the holders of the various elective offices would either not be legally in office, or if they elected to go home, then the elective offices would be vacant for eight months. The ramifications of such scenarios were far greater than that the office of the MCAs, as it cut across all elective positions. One such office being that of the President. That would have had the resultant effect of placing Kenya in constitutional crisis. Such an effect would not have been the intention of the framers of the Constitution and would not have been a reflection of the will of the people.
12. Transitional and consequential provisions in the Constitution were supposed to be a bridge between two constitutional dispensations. Those provisions provided for the orderly implementation of law helping to avoid the shock that could result from an abrupt change in the law. However, transitions were not always smooth and often times called for compromise. The effects of the transition in the Kenyan context did not end with the holding of the first general elections pursuant to the Sixth Schedule to the Constitution. One compromise that had to be made was the date of the second general elections.
13. By choosing to hold the elections on August 8, 2017, IEBC were selecting the more rational and judicious option of having the terms in office for holders of elective posts, end a few months short of the five-year mark. Rather than ending five months over and above their term limits. A secondary consequence of that choice was ensuring a smooth transition from one Government to another. The eight-month gap was a compromise that the Kenyan people and by extension, their elected leaders had to make in order to complete the transition from the old constitutional order to the Constitution of Kenya, 2010. The third general elections, falling on the fifth year being August 9, 2022 from August 8, 2017, meant that the transition was complete.
14. The decision by IEBC to hold the second general elections under the Constitution of Kenya, 2010 on August 8, 2017 was not unconstitutional. IEBC was seeking to give effect to the will of the people as expressed in the provisions of the Constitution in a manner that resonated with a purposive interpretation of articles 177(1) and as read with article 259 the Constitution.
15. There was a reduction of the term of office of MCAs elected in the first general elections under the Constitution by virtue of the second general elections being held in August 8, 2017.
16. Pursuant to article 38(3) of the Constitution, the MCAs had a right to hold office. However, they held elective office subject to application and interpretation of the Constitution. The Constitution required a holistic and purposive interpretation, which included considering the provision of article 24 of the Constitution on limitations of rights and freedoms. The implication of that was that, outside the non-derogable rights enshrined in article 25 of the Constitution, the rest were not absolute hence subject to some forms of limitations provided that the limitation did not go against article 24.
17. Legitimate expectation was a doctrine well recognized within the realm of administrative law and well reflected in judicial practice in Kenya. The principles of application of legitimate expectation were as follows;
- there had to be an express, clear and unambiguous promise given by a public authority;
- the expectation itself had to be reasonable;
- the representation had to be one which it was competent and lawful for the decision-maker to make; and
- there could not be a legitimate expectation against clear provisions of the law or the Constitution.
18. The Constitution provided under article 1 that all sovereign power belonged to the people of Kenya and should be exercised only in accordance with the Constitution. It further provided that the people of Kenya could exercise their sovereign will either directly or indirectly through their democratically elected representatives. Sovereign power under the Constitution was delegated to Parliament and the legislative assemblies in the county governments, the national executive and the judiciary and independent tribunals. That was reiterated in Chapter Six of the Constitution, more specifically article 73.
19. It was due to public trust that elections were considered to be sui generis affecting not just the contestants for public office but the people on whose behalf they vied. Public office to which a portion of the sovereignty of the people, either legislative, executive or judicial, attached for the time being and which was exercised for the benefit of the public, did not vest in the holder of the office the right to property of the office.
20. The holders of elective office vied and held office, not for their private benefit but for the benefit of their constituents on whose behalf they acted. The holders of such office retained their rights to fair administrative actions, access to justice and fair hearing as enshrined in articles 47, 48 and 50 of the Constitution. They could not be removed from office, other than by operation of the law. In the instant suit, it was the interpretation and application of the constitutional requirement to hold elections on the second Tuesday in August, in every fifth year, that imposed the need to hold the second general elections on August 8, 2017 thereby occasioning the gap of eight (8) months.
21. The MCAs term in office ended by operation of the Constitution, thereby running afoul the principles of legitimate expectation. Further, election into public office was not anchored on a promise. The appellant’s claim for legitimate expectation lacked merit. The claim that the MCA’s had proprietary rights to the unexpired eight-month period also failed.