Wabwile & another v Independent Electoral & Boundaries Commission (IEBC) & 4 others (Constitutional Petition E012 of 2022)  KEHC 16078 (KLR) (1 December 2022) (Ruling)
Neutral citation:  KEHC 16078 (KLR)
Republic of Kenya
Constitutional Petition E012 of 2022
REA Ougo, J
December 1, 2022
CONSTITUTION OF KENYA 2010 IN THE MATTER OF VIOLATION OF THE CONSTITUTION OF KENYA, 2020 AND DISCRIMINATION OF PERSONS WITH DISABILITY IN THE NOMINATIONS TO BUNGOMA COUNTY ASSEMBLY BY THE INDEPENDENT ELECTION AND BOUNDARIES COMMISSION, FORUM FOR RESTORATION OF DEMOCRACY- KENYA DEMOCRATIC ACTION PARTY OF KENYA AND UNITED DEMOCRATIC ALLOANCE
Independent Electoral & Boundaries Commission (IEBC)
Forum for Restoration of Democracy-Kenya
Democratic Action Party of Kenya
United Democratic Alliance
Kenneth Makelo Lusaka, County Governor of Bungoma
1.This ruling relates to the preliminary objections by the 1st, 2nd, 4th and 5th respondents.
2.The dispute subject of the petition herein was occasioned by the presentation of the nomination list by the 2nd, 3rd and 4th respondents to the 1st respondent. The petitioners contends that the 2nd, 3rd, 4th and 5th respondent failed to take into account the requirement to present persons with disability as Members of County Assembly of Bungoma contrary to article 10, 27(8), 54, 73, 81 (b), 90 and 177 (1)(c) of the Constitution. The omission of the persons with disability from the nomination process was illegal irregular and violated political rights of eligible persons with disability stipulated in article 38 of the Constitution. The petitioners also filed a notice of motion seeking an order directed at the respondent to comply with the principles of the Constitution of Kenya with regard to nomination of persons with disability as members of the County Assembly of Bungoma.
3.The petition prompted the filing of preliminary objections by the 1st, 2nd, 4th and 5th respondents. The 1st respondent filed its preliminary objection on October 12, 2022 on the following grounds:1.That the petition is fatally defective, incompetent, bad in law and an abuse of this honourable court’s process.2.That this court not being an election court under the Election Act, 2011 for the purposes of this petition and the issues rise therein, lacks the requisite jurisdiction to hear and determine this petition.3.That there is clear procedure for resolution of the dispute in this matter.4.That the honourable court does not have jurisdiction to hear and determine the petition herein especially “nullify and declare the nomination list of the members of the County Assemblies published and gazette (sic) by the 1st respondent on behalf of the 2nd -4th respondents” as sought at prayer (b) of the petition.5.That upon gazettement of members of the County Assembly, they are deemed to be elected members of the County Assembly.6.That once a member has been gazetted as duly nominated, that becomes an election result and anyone unhappy with that result can only challenge it as an election dispute in an election court.7.That the present petition is an election petition against the elections of the members of the County Assembly of Bungoma disguised as a constitutional petition thereby depriving this court of jurisdiction to hear and determine it.8.That the publication of the Gazette Notice marks the end of the mandate of 1st respondent, regarding the nomination of party representatives, and shifts any consequential dispute to the election courts;9.That the petition herein is filed contrary to clear jurisprudence set out by the Supreme Court in Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others  eKLR…
4.On October 13, 2022, the 2nd and 5th also raised the following grounds of opposition and notice of preliminary objection:1.That the court lacks jurisdiction to hear and determine the application and the petition in view of the provisions of article 88 (4) (e) of the Constitution of Kenya 2010, section 74 (1) of the Elections Act 2011 and section 39 of the Political Parties Act.2.That the entire application is overtaken by events as the action the applicants and petitioners seek to injunct and restrain the respondent from carrying out has already been done.3.That the petitioners have not demonstrated a prima facie case with a likelihood of success to enable them deserve conservatory orders sought.4.That the application and petition is bad in law and incompetent in view of the Supreme Court of Kenya ruling in the case of the Supreme Court Petition No 1 of 2015 Moses Mwicigi and 14 others v IEBC & 5 others.5.That the 5th respondent is wrongly enjoined in the proceedings as he does not play any role in the nomination of Members of County Assemblies.6.That this is an election petition disguised as a constitutional petition.
5.The final preliminary objection was raised by the 4th respondent on October 17, 2022 challenging the jurisdiction of this court on the following grounds:1.That, this honourable court lacks jurisdiction to entertain, hear and determine the petition and the application pursuant to the provisions of sections 75(1A) of the Elections Act….2.That this honourable court lacks the jurisdiction to grant the orders sought in the petition and application pursuant to rule 6(1) (b) of the Elections (Parliamentary and County Elections) Petition Rules, 2017…3.That the petitioner’s application and petition dated September 19, 2022 does not disclose violations of the Constitution or law.4.That the petitioner’s application and petition dated September 9, 2022 is an abuse of court process.
6.The common thread in the preliminary objections raised by the 1st, 2nd, 4th and 5th respondent is the jurisdiction of this court to entertain the petition and the notice of motion filed by the petitioners. At the heart of every case in the justice system is the question of jurisdiction as it confers to courts the ability, legality, and power to hear a case before it. In Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd  KLR 1 Nyarangi, JA held as follows:
7.The 1st respondent submitted that the publication in the Kenya Gazette of the nominated Members to the County Assembly of Bungoma in respect to the marginalised list marked the end of elections of the said members to the County Assembly. Any dispute after publication of the names regarding their validity or otherwise should be resolved through an election petition. It argued that the petitioners ought to have initiated the petition as an election petition in the right forum within the stipulated time. A question as to the validity of the election of a member of county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice (see section 75 (1A) of the Elections Act). Election disputes challenging the election of a member of the County Assembly should be filed before an election court within 28 days after the declaration of the election result. They relied on the case of the Speaker of the National Assembly v Hon James Njenga Karume, Civil Application No 92 of 1992 (2008) 1KLR 425 where the court stated:
8.The 1st respondent further argued that the petitioner should have followed the procedure stipulated in the Elections Act, 2011 and the Election Regulations to address their grievances.
9.The 2nd and 5th respondent also made submissions on the issue of jurisdiction arguing that this court lacks jurisdiction to determine the dispute before it. It relied on the case of Republic v Independent Electoral and Boundaries Commission & 2 others (2013) eKLR where the court observed that:
10.They also relied on the case of Anthony Salau & another v Independent Electoral and Boundaries Commission & 2 others  eKLR where the court dismissed a petition of similar nature as the petitioners filed them in the wrong forum. In Isaiah Gichu Ndirangu & 2 others v Independent Electoral and Boundaries Commission & 4 others  eKLR Lenaola J as he then was observed that:
11.The 4th respondent, on the issue of jurisdiction, submitted that the real question before the court is the nomination of members of the County Assembly of Bungoma which has been disguised as an election petition. The Elections Act gives the Magistrates Courts jurisdiction to hear and determine election petitions relating to membership of the County Assembly. They relied on the Court of Appeal case in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others  eKLR where the court stated:
12.The petitioners in their submissions maintained that the matter raised in their application and petition is a constitutional issue. The main issue before the court concerns discrimination against persons with disabilities which is within the jurisdiction of the court; not only are the issues raised touching on the exclusion of persons with disability from the County Assembly of Bungoma but also about the unconstitutionality of the composition of the county assembly.
13.I have considered the arguments by the parties and the main issue in this petition is the nomination of candidates by the 2nd, 3rd and 4th respondents based on their party lists. It is not in dispute that the 2nd, 3rd and 4th respondents submitted to the 1st respondent their party lists for nomination of candidates in the order of priority in which the political parties wanted the members picked as provided in article 90 (2) (b) of the Constitution and section 34 (5) of the Election Act. It is also not disputed that the 1st respondent has already published in the Gazette Notice No 10712 of September 9, 2022 nominated candidates for the 2nd, 3rd and 4th respondent for the Marginalized list and gender top up in the County Assembly of Bungoma.
14.The petition herein was filed on September 20, 2022 after the Members of the County Assembly of Bungoma who were nominated based on the party lists had been gazetted by the 1st respondent. The gazetted nominees are now members of the County Assembly of Bungoma. courts have consistently maintained that once nominees have been gazetted any issue on their nomination can only be challenged by way of an election petition. This was the position in Vitalis Ojuang Odek v Independent Electoral and Boundaries Commission & 3 others  eKLR where the court held that:
15.The 1st, 2nd, 4th and 5th respondents all sought to rely on the Supreme Court decision in Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others  eKLR that explained the process of election through nomination that is finalized by publication of the members in a gazette notice. The court held:
16.The petitioners in their submissions against the preliminary objections argued that the petition and the application are strictly constitutional petition and that the 1st respondent did not ensure that the 2d, 3rd and 4th respondents complied with articles 10, 27 (8), 54, 73, 81 (b), 90 and 177 (c) of the Constitution of Kenya. On the contrary, I find that the petition is in the nature of an election petition challenging the election of members of the County Assembly of Bungoma through nominations. Although the petitioners have alleged that actions of the respondents amounted to discrimination of persons with disability in violation of article 54 of the Constitution, I find that the provisions of the constitution should not be read in isolation but together with other provisions of the Constitution. This was the holding in Busia County Persons with Disability Network & 4 others v Independent Electoral and Boundaries Commission & 2 others  eKLR where the court stated:
17.In conclusion, I find that this court has no jurisdiction to consider a dispute concerning an election through nomination as the petition ought to have been filed in the Magistrates Court. The result is that the preliminary objections dated 6th, 12th and 13th October are hereby upheld. The parties shall bear their own respective costs.
DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 1ST DAY OF DECEMBER, 2022.R.E. OUGOJUDGEIn the presence of:1st & 2nd Petitioners in person1st Respondent2ndRespondent3rd Respondent4th Respondent5th RespondentWilkister C/A