Kenya Human Rights Commission & 3 others v Independent Electoral & Boundaries Commission & 3 others; National Council for Persons with Disability & another (Interested Parties) (Election Petition E454 of 2022)  KEHC 16358 (KLR) (Election Petitions) (16 December 2022) (Ruling)
Neutral citation:  KEHC 16358 (KLR)
Republic of Kenya
Election Petition E454 of 2022
M Thande, J
December 16, 2022
Kenya Human Rights Commission
United Disabled Persons of Kenya
Action Network for the Disabled
Consortium of Disabled People Organizations in Kenya
Independent Electoral & Boundaries Commission
County Assemblies Forum
Registrar of Political Parties
National Council for Persons with Disability
Kenya National Commission on Human Rights
1.Before court for determination is the preliminary objection (PO) by the IEBC dated October 13, 2022 in opposition to an application dated September 23, 2022 and petition of even date and amended on October 5, 2022.
2.In the petition, the petitioners describe themselves as non-governmental organisations that campaign to create a culture in Kenya where human rights and democratic culture are entrenched. They challenge Gazette Notice No 10712 of September 9, 2022 in which the IEBC gazetted the nominees by political parties to county assemblies. The gazettement was done in keeping with section 36(4) of the Elections Act that requires the gazettement within 30 days of the declaration of the results of the general elections.
3.It is the petitioners’ case that the list of nominees gazetted did not comply with the Constitution, legislation and international law as in most counties, there was total neglect of persons with disabilities (PWDs) contrary to the requirement under section 36(1)(f) of the Act. Further, that in some counties, the nominations did not have youth representatives as required under section 36(10)(f) of the Act. In some cases, some of those nominated as youth do not meet the age requirement. In some counties, those nominated are not residents or registered voters of the county they represent, while in others, those nominated to represent marginalised groups do not in fact belong to such groups. In yet other counties, men have been passed off as women, the order of priority in the lists was not honoured while in other caswes persons not in nomination lists have been gazetted.
4.The foregoing provoked the petitioners to move to court seeking the following reliefs:A.A declaration that the IEBC was duty bound to ensure that the final nomination list published on September 9, 2022 (No 10712) complied with articles 177(1)(b) & (c) as read with sections 34(5) and 36 of the Elections Act.B.A declaration that the final lists on the gazette notice of September 9, 2022 (No 10712) violated articles 1, 2, 10, 20, 21, 28, 47, 54, 55, 91 and 177 of the Constitution of Kenya, 2010.C.An order of certiorari bringing to the High Court the Gazette Notice No 10712 of September 9, 2022 for quashing.D.A mandatory order compelling the IEBC to conduct the process of nomination of Members of County Assemblies afresh in compliance with the dictates of the Constitution and the Elections Act.E.The costs of this petition be borne by the respondents."
5.Filed contemporaneously with the petition is an application of even date seeking the following orders:1.Spent.2.That there be and is hereby issued a conservatory order barring the Members of the County Assembly nominated pursuant to Gazette Notice No 10712 of September 9, 2022 in all the 47 counties from participating in legislation or oversight or any other business of the County Assemblies pending hearing and determination of this application.3.That there be and is hereby issued a conservatory order barring the Members of the County Assembly nominated pursuant to Gazette Notice No 10712 of September 9, 2022 in all the 47 counties from participating in legislation or oversight or any other business of the County Assemblies pending hearing and determination of this Petition.4.That in the alternative to prayer 3, there be and is hereby issued a conservatory order restraining the members of the 3rd respondent from involving the Members of County Assembly nominated pursuant to Gazette Notice No 10712 of September 9, 2022 in the legislative and oversight mandate of the County Assemblies pending hearing and determination of this petition.5.That costs be provided for.
6.The PO by the IEBC raises the following objections:1.The petition as filed is defective, incompetent, misconceived and lacks merit, is an abuse of the court process and should be dismissed in limine.2.The court lacks jurisdiction to entertain the petition.3.The petition offends the provisions of article as against the gazetted and duly elected members of the county assemblies, the 47 county assemblies and all political parties whose members are in the contested party lists and impugned gazette notice.4.The petition offends the provisions of article 87(1) and (2) of the Constitution, sections 35a(3), and 75(1A) of the Elections Act, sections 38, 40 and 41 of the Political Parties Act and regulations 9 and 13 of the Rules of Procedure on Settlement of Disputes (Legal Notice No 139).
7.Submissions were filed by the petitioners and the IEBC. The 2nd and 4th respondents opted to associate with the submissions of the IEBC.
8.The court has duly carefully considered the petition, the PO, the rival submissions as well as the authorities cited. The only issue for determination is whether this court has jurisdiction to hear and determine the petition.
9.It is the case of the IEBC that this court lacks the requisite jurisdiction to hear and determine the petition and grant the orders sought therein. This submission is informed by the uncontested fact that the IEBC did on September 9, 2022, vide Gazette Notice No. 10712, gazette the nominees to county assemblies following the general elections of August 9, 2022. The IEBC further submitted that the amended petition as filed and the orders sought are not ripe for argument or settlement before this court.
10.The petitioners countered these submissions by arguing that they are rightly before this court. They contended that they seek an interpretation of what a duly and fully constituted county assembly is as per section 7A of the County Governments Act. Further, whether the IEBC discharged its mandate as required under articles 10, 47, 54, 81, 82, 91 and 177 of the Constitution as read with section 36(3) of the Elections Act as well as article 29 of the Convention on the Rights of Persons with Disabilities. They further contended that they seek an interpretation of section 36(8) of the Elections Act which purports to restrict the mandate of the IEBC vis-a-vis section 36(3). Additionally, the petitioners seek a determination as to whether the manner in which the nominees for county assemblies were elected complied with the Constitution and the law and by extension whether the gazette notice complied with the law.
11.The petitioners further submitted that the petition challenges the manner in which the IEBC exercised its mandate to conduct the election of MCAs to special seats. They contend that the IEBC violated the Constitution and statute. They disagree with the IEBC’s contention that they ought to have approached the Political Parties Dispute Tribunal, the IEBC Dispute Resolution Committee and the Election Court. They do not challenge the party lists submitted by political parties but the decision by the IEBC to issue a final list that fails to comply with the Constitution, statute and international law. Accordingly, failure to comply with the law in effecting final allocations from party lists, renders the county assemblies that do not have persons with disabilities, unlawful.
12.The right of PWDs, minorities and the marginalised to enjoy political rights is anchored in and protected by the Constitution, national and international law. Article 29 of the Convention on the Rights of Persons with Disabilities requires states parties to guarantee to persons with disabilities, political rights and the opportunity to enjoy such rights on an equal basis with others and to ensure that such persons can effectively and fully participate in political and public life on an equal basis with others. The Constitution of Kenya makes similar provisions. Under article 10, non-discrimination and protection of the marginalised is one of the national values and principles of governance that bind all state organs, such as the IEBC, whenever it applies the Constitution or any law. Article 54(2) enjoins the State to ensure the progressive implementation of the principle that at least 5% of the members of the public in elective and appointive bodies are persons with disabilities. Article 82(2) requires that any legislation governing the conduct of elections shall ensure that voting takes into account the special needs of persons with disabilities. Political parties are not left behind. Under article 91(1)(e) they are enjoined to respect the right of all persons including minorities and marginalised groups, to participate in the political process.
13.The inclusion of PWDs, minorities and the marginalised in county assemblies is provided for through special seats. Article 177(1)(b) and (c) of the Constitution which provides that a county assembly shall consist of inter alia, the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender and that the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament. Section 34(5) of the Elections Act requires political parties to submit party lists to IEBC at least 45 days before the date of the general election. Section 36(1)(f) provides for allocation of special seats and requires that a party list submitted by a political party under article 177(1)(c) of the Constitution shall include 8 candidates, at least 2wo of whom shall be persons with disability, 2 of whom shall be the youth and 2 of whom shall be persons representing a marginalized group.
14.Section 34(6A) of the Act requires that party lists shall be submitted in order of priority.
15.Under section 34(6A), the IEBC is required to review the party list submitted to it for compliance and thereafter issue the political with a certificate of compliance.
16.It can be seen from the foregoing that the IEBC is enjoined to ensure that, in nominating persons for special seats, political parties comply with the law before gazettement. The Petitioners challenge the gazettement of the nominated members of 22 county assemblies. Their contention is that the list of nominees gazetted did not comply with the Constitution, legislation and international law, for not including PWDs, minorities and the marginalised. Further, some of those nominated did not meet the qualifications to represent of the groups they purportedly represent. Additionally, in some cases, the order of priority in the lists was not honoured while in others, persons not in nomination lists were gazetted. In spite of the foregoing, the IEBC proceeded to gazetted the flawed lists. As such, the petitioners contend that it is necessary for the court to step in and interpret and clearly define the bounds within which the IEBC must operate as it conducts nominations to the county assemblies.
17.The question that this court must answer however, is whether upon gazettement of the party lists as was done by the IEBC, vide the gazette notice in question, this court has jurisdiction to intervene in respect of any alleged violation of the law.
18.Article 165(3) of the Constitution confers upon the High Court unlimited original jurisdiction in civil and criminal matters. The court also has jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of the question whether any law is inconsistent with or in contravention of this Constitution or whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the Constitution.
19.This jurisdiction of the High Court was affirmed in the case of In the Matter of Interim Independent Electoral Commission  eKLR where the Supreme Court declined to assume jurisdiction over the question of the date of elections and stated:
20.The jurisdiction of the court as outlined above may however be limited by the Constitution and statute in certain instances. The court may thus only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. This was the holding in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others  eKLR where the Supreme Court succinctly stated:
21.Similarly, in the case of Eliud Wafula Maelo v Ministry of Agriculture & 3 others  eKLR, the Court of Appeal considered the question of limitation of the jurisdiction of the High Court and stated as follows:
22.The people of Kenya when enacting the Constitution recognised that disputes relating to elections will inevitably arise. Provision was thus made under article 87(1) that Parliament shall enact legislation to establish mechanisms for the timely settlement of electoral disputes. The Elections Act, 2011 is the legislation that was enacted to give effect to the said article. In determining the jurisdiction of this court in matters relating to elections, or indeed any other matter, the court must beyond the provisions of the Constitution have regard to the provisions of relevant statutes.
23.Under article 88(4)(e) and section 74 of the Elections Act, IEBC is vested with the mandate to resolve electoral disputes. However, that mandate does not extend to election petitions and disputes subsequent to the declaration of election results. Article 88(4)(e) provides as follows:
24.Section 74 of the Elections Act is couched in similar terms as follows:
25.In the present case, the petitioners challenge gazette notice of September 9, 2022 by the IEBC, of the nominated members of 22 county assemblies. It is now well settled that gazettement of nominated members of county assemblies, as in the present case, is an election. In the case of Rahma Issak Ibrahim vs Independent Electoral & Boundary Commission & 2others  eKLR Mwita, J reiterated the legal position on the effect of gazettement of nominated members of a county assembly and stated:
26.The Court of Appeal while considering this very issue in the case of Rose Wairimu Kamau and 3 others v IEBC, CA No 169 of 2013 rendered itself as follows:
27.Similarly, in the case of Jaldesa Tuke Dabelo v Independent Electoral & Boundaries Commission & another  eKLR, the Court of Appeal considered the question of the jurisdiction of the High Court in a dispute concerning gazettement of nominated of members of county assemblies. The court stated that the High Court lacked jurisdiction and stated as follows:
28.The Supreme Court also had occasion to consider this very same issue in the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others  eKLR, and had this to say:
29.The Supreme Court affirmed the legal position of election by way of nomination, through the party list. The court further affirmed the principle that that any challenge of such an election may only be by way of an election petition.
30.Based on the foregoing, it quite evident that upon gazettement of members of a county assembly who are nominated pursuant to article 177 of the Constitution, such members are deemed to be duly elected. Any person aggrieved by such gazettement as the petitioners herein are, may only find recourse in an election court designated under section 75(1A) which provides as follows:
31.A reading of the above provision makes it clear that the question as to the validity of the election of a member of county assembly may only be raised in the election court. Thus, a person wishing to challenge the gazettement of a member of a county assembly, as the Petitioners have herein, may only do so in an election court. Such election court is a Resident Magistrate’s Court duly designated as such, by the Hon Chief Justice. A petition filed in any other court or forum to challenge such election, is incompetent for want of jurisdiction.
32.My view is that the issue of violation of the Constitution and statute by IEBC in gazetting the nominees for the various county assemblies ought to be raised in the election court as a ground for nullification of the election. Duly guided by the Supreme Court in the case of Moses Mwicigi & 14 others, I find that allowing the petitioners herein to move this court by way of a constitutional petition in the present circumstances, is to set up a parallel electoral dispute-resolution regime, thereby defeating the sui generis character of electoral dispute-resolution mechanism provided in law. It is in the election court that the validity or otherwise of the nominations in question is to be determined. Accordingly, this court must not allow an electoral dispute to be transmuted into a constitutional petition as sought by the petitioners herein.
33.The law has provided a clear procedure for redress and such procedure must be followed to the letter. In the case of such case is Speaker of the National Assembly v James Njenga Karume  eKLR the Court of Appeal addressed its mind to this very issue and stated:
34.The court is of the view that prayers A, B D E and F sought in the amended petition, if granted, will have the effect of nullifying the election of members of the 22 county assemblies. As indicated herein, the jurisdiction of the High Court in particular matters or instances can be ousted or restricted by statute. This is one such instance. Jurisdiction to adjudicate entertain a dispute in respect of the election of a member of a county assembly has been conferred upon the Resident Magistrate’s Court, as designated by the Chief Justice under section 75(1A) of the Elections Act.
35.The court is aware that the petitioners also seek a declaration that section 36(8) of the Elections Act is unconstitutional. This court has jurisdiction under article 165(3)(d)(i) to determine the question whether any law is inconsistent with or in contravention of this Constitution.
36.Having considered the foregoing, the inevitable conclusion that this court must draw is that it lacks jurisdiction to entertain the petition herein save for prayer C. It is trite law that without jurisdiction this court has no power to make one more step. See the case of Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd  KLR 1, Nyarangi, JA held as follows:
37.In the end and in view of the foregoing, the final orders hereby issue:i.The preliminary objection dated October 13, 2022 partially succeeds.ii.The court declines jurisdiction in respect of prayers A, B, D, E and F of the amended petition.iii.The court has jurisdiction to deal with prayer C of the amended petition.iv.Costs in the cause.
DATED AND DELIVERED IN NAIROBI THIS 16TH DAY OF DECEMBER 2022........................................................M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Petitioners…………………………………………………………… for the 1st Respondent……………………………………………………………for the 2nd Respondent……………………………………………………………for the 4th Respondent..……………………………………………………Court Assistant