Rajput & another v Independent Electoral & Boundaries Commission & another; Principal Registrar of Persons Ministry of State for Immigration & 2 others (Interested Parties) (Constitutional Petition E260 of 2022)  KEHC 17164 (KLR) (Constitutional and Human Rights) (16 December 2022) (Judgment)
Neutral citation:  KEHC 17164 (KLR)
Republic of Kenya
Constitutional Petition E260 of 2022
AC Mrima, J
December 16, 2022
Nazlin Omar Fazaldin Rajput
Caucus For Peace & Independent Candidates of Kenya
Independent Electoral & Boundaries Commission
Principal Registrar of Persons Ministry of State for Immigration
Director of Criminal Investigations
Office of the Data Protection Commissioner
1.The 1st Petitioner, Nazlin Omar Fazaldin Rajput, presented the Petition subject of this judgment as a law abiding, public spirited national figure. She is the President of Caucus for Peace & Independent Candidates of Kenya, (hereinafter the 2nd Petitioner or ‘the Caucus).
2.The Petitioner was an aspiring independent presidential candidate for the general elections held on 9th August 2022.
3.Through the Petition dated 31st May 2022, and supported by the affidavit of Nazlin Omar Fazaldin Rajput deposed to on an even date, the Petitioner approached this Court contesting the decision by the Independent Electoral and Boundaries Commission, (hereinafter ‘The IEBC’ or ‘The Commission’ or 1st Respondent) not to clear her and other independent candidates to run for presidency.
4.In the main, the Petitioner posited that the decision by IEBC to bar her and the other independent candidates was an abrogation of Article 1 of the Constitution which entitles people to exercise their sovereign power directly or through their democratically elected leaders.
5.She posited that barring of independent candidates would render the general elections scheduled for 9th August 2022 undemocratic, an affront to Article 1 of the Constitution.
6.It was her case that if IEBC’s deadlines for submission and clearance of aspirants were allowed to proceed as scheduled, there will be great travesty of justice.
7.She pleaded that, the 2nd Petitioner, being the pioneering body of independent candidates in Kenya, its members faced numerous obstacles created by IEBC which barred them from exercising their democratic rights.
8.It was her case that there was a sharp rise of independent aspirants for various reasons among them, hinderances by political parties and bottle necks created by state institutions for failing to penalize political parties against electoral offenses committed during party primaries.
9.She pleaded that as a result of the foregoing, many people fell out with their parties and took the independent route as allowed in the constitution under Article 85, 99 and 137, but the IEBC and the state to sabotaged them.
10.The Petitioner stated that locking out of independent candidates spelled doom to the democratic gains and democratic status of the nation. She expressed her vote of no confidence and that of the 2nd Petitioner in The Commission and the election process generally.
11.She posited that the Petition was informed by the need to forestall a shambolic unconstitutional election process which if not acted upon would result in loss of public funds in a repeat poll.
12.To demonstrate her disenfranchisement by IEBC’s decision to bar her as an independent presidential candidate, the 1st Petitioner claimed that the Office of the Registrar of political parties (ORPP) had cleared her as an independent presidential candidate. She posited that her symbol of a fist holding a red card had also been cleared.
13.It was further her case that IEBC violated and continued to violate the very general principles for the electoral system as provided in Article 81, the preamble, Article 2, 3(d) and Article 10 on National values and principles of governance that it is mandated to uphold and defend.
14.She pleaded that based on the decision in Petition No. 28 of 2020 consolidated with Petition No. E549 of 2017, e077 of 2022, E037 of 2021 & E065 of 2021, the education qualifications for presidential aspirant is the same as those of an Member of Parliament.
15.The Petitioner decried as unconstitutional and punitive the obligation upon presidential aspirants to compulsorily obtain and attach identity cards of all signatories who nominate them for elective seats.
16.It was her case that despite making submission to the IEBC on her presidential candidature, her name was missing from media publication of those whose submissions the commission had received.
17.She pleaded that it was discriminatory for parties sponsored by political parties not to be subjected to the same process and hurdles as it was for independent candidates.
18.It was her case that the requirements on identity cards place undue bottlenecks on the independent candidates thus creating an artificial barrier on their candidacy consequently impeaching the constitutional and sovereign rights of the electorate to elect any person of their choice.
19.On a different line of argument, the Petitioner submitted that the President of the Republic of Kenya abused his office for campaigning for Raila Odinga to the detriment of other aspirants and the at the expense of the tax payers in open and flagrant violation of Chapter Six of the Constitution and electoral laws.
20.Based on the foregoing factual matrix, the Petitioners prayed for the following orders;
21.The Petitioner did not file written submissions. She however highlighted her case orally reiterating her case as in the Petition.
1st Respondent’s Case
22.The Independent Electoral and Boundaries Commission opposed the Petition through the Replying Affidavit of Moses Ledama, its Acting Director Voter Registration and Electoral Operations deposed to on 18th July 2022.
23.Mr. Ledama deposed that the Petition did not set out with precision the provisions of Constitution alleged to have been violated and the manner in which they were contravened.
24.As to the qualification of the 1st Petitioner to contest as an independent presidential candidate, it was his case that she did not fulfil pre-nomination requirements for failing to submit certified academic qualifications as required under section 22(2) of the Elections Act 2011 and Regulation 47 of the Elections (General) Regulations 2012.
25.He deposed that the Petitioner failed to submit to the IEBC a list of names , respective signatures, copies of Identification Cards, of at least 2000 voters registered in each of a majority counties as per the requirements under Regulation 18(1) of the Elections (General) Regulations 2012.
26.On the foregoing unmet legal requirement expected of any aspiring presidential candidate, the 1st Respondent deposed that the Petitioner’s case was without merit, scandalous and a waste of court’s time.
27.Mr. Ledama was categoric that the IEBC has an obligation as prescribed under Article 88(4) & (5) of the Constitution and the Elections Act and the Regulations therein to ensure that any person seeking to be elected as a president, Deputy President, County Governor or Deputy County Governor has at least educational qualification of a degree from a university recognized in Kenya.
28.In rebutting the claim of discrimination, it was his contention that the provision of Regulation 22(2) of the Elections Act and Regulation 47 of the Election (General Regulation) was neither within prohibited degrees of discrimination under Article 27 of the Constitution nor does it unfairly limit the right of persons to political participation under Article 38 of the Constitution.
29.It was his position that educational requirements was settled by the Court in Johnson Muthama -vs- Minister for Justice and Constitutional Affairs & Another 2017 where the Court found the requirement as set out under section 22(2) of the Elections Act was constitutional.
30.He deposed further that in line with the Gazette Notice No. 431 and 432 under vol. CXXIV- No. 14, the IEBC had commenced electing processes and to that end, required candidates intending to vie for the 9th August 2022 elections as independent candidates to submit their symbols, letter of intent to vie and clearance from the registrar of political parties by 2nd May 2022.
31.It was his deposition that the Petitioner, despite being present in the 1st Respondent’s meeting held on 23rd May 2022 for the pre-nomination meeting, did not submit any documents in accordance with regulation 17 of the Election (general) Regulations indicating her intention to vie in the 2022 presidential election.
32.He further deponed that the Petitioner did not lodge any complaint with the Commission before the Dispute Resolution Committee.
33.Mr. Ledama maintained that the IEBC did not get any indication that the Petitioner intended to vie as a presidential candidate and with such failure, institution a Petition as this is tantamount to approaching the Court with unclean hands
34.He further deposed that the timelines set by the IEBC are in line with the Constitution, the Elections Act and if extended as requested by the Petitioner would ultimately adversely affect the IEBC’s ability to deliver the elections of 9th August 2022.
35.It was further his case that the Petitioner did not challenge all the legal requirements set out in Regulation 19, 25,29, 33 & 37 of the Elections (General) Regulations guide nomination process.
36.As regards the publication of the National Identity Cards of supporters of nominated persons, it was his case that under section 45 of the Data Protection Act as appreciated alongside Article 31 of the Constitution, any audit or publication of such information would infringe on the rights of the holders.
37.In conclusion it was his case that the allegation by the Petitioner on stealing and use of personal information is serious one and criminal but remained without proof.
38.The 1st Respondent further urged its case through written submissions dated 10th July 2022. The same were highlighted by its Counsel Mr. Niwa.
39.In his oral highlights, he stated that the Petitioner only complied with requirements for presidential candidates to the extent of presenting evidence of her symbol. She however failed to supply the requisite fee, her academic qualifications and list of supporters, conditions prescribed by law.
40.Counsel drew the Court’s attention to Gazette Notice No. 430 of 20th January 2022 which made public the legal requirements to be fulfilled by persons seeking to be elected as president which the Petitioner failed to meet.
41.It was his case that the Petitioner’s request for extension of timelines could not be allowed since they are set by law and that she was seeking preferential treatment.
42.In the written submissions, the 1st Respondent identified the issues for determination as being; whether section 22(2) of the Elections act as read with Regulation 16, 17 and 18 of the Elections General Regulations are unconstitutional; whether the 1st Respondent could extend constitutional timelines and whether the Petitioner was entitled to the prayers sought.
43.On the first issue on constitutionality of Regulations 16,17 and 18 of the Election General Regulations, refence was made to the case of R -vs- Big M Grug Mart Ltd (1985) 1 SCR 295, cited with approval in the case of The Institute of Social Accountability & Another -vs- National Assembly & 4 Others where it was found that all legislation is animated by an object the legislature intends to achieve and in assessing unconstitutionality, both purpose and effect must be considered.
44.On the foregoing, it was submitted that the Petitioner was misapplying and misinterpreting section 22(2) and 33 of the Elections Act, and Regulation 16, 17 and 18 of the Elections (General) Regulations therein. He reiterated that the said provisions were no discriminatory.
45.On the issue of availing identity cards, it was emphasized that according to section 45 of the Data Protection Act, National Identity Cards qualify as sensitive data whose publication would violate holder’s rights protected under Article 31 of the Constitution.
46.It was his case that the right to information is limited under Article 24 of the Constitution so as to ensure that its enjoyment does not prejudice the rights and fundamental freedom of others.
47.Reference to that end was made to section 3 of the Data Protection Act where it is a requirement in law to regulate the processing of personal data in order among other things to protect the privacy of individuals.
48.To further buttress the importance o f protection of personal data, it was submitted that section 27(3) and (4) of the IEBC Act which allows the Commission to decline information which is sensitive to an applicant where the information is unreasonable in the circumstances or is at deliberative stage by the commission ir where the application fails to satisfy any confidentiality requirement by the commission.
49.In urging the Court to decline the prayer for damages, it was submitted that the Petitioner did not demonstrate to IEBC her intention to vie as an independent candidate and thus her name could not be cleared. It was claimed therefore that the prayer for damages was without basis.
50.The 1st Respondent concluded by stating that the Petitioner had not been candid with the Court as to whether she submitted all her documents and paid requisite fees in accordance to the law. It was also submitted that she had not explained her failure to comply with the laws and regulations.
51.While relying on the decision in John Njue Nyage -vs- Nicholas Njiru Nyaga & Another (2013) eKLR on the need for a person to approach the court with clean hands, the 1st Respondent submitted that the Petitioner was un deserving of the orders sought as no rights infringed. It stated that the IEBC acted within the law and its mandate.
52.It was its position that the Petitioner failed to comply with the Elections Regulations and by her own carelessness failed to submit her list of supporters and academic qualifications to facilitate her clearance and subsequent gazettement for 9th August 2022 elections.
53.On the foregoing premises, the 1st Respondent submitted that the Petitioner did not discharge her burden of proof. To buttress the position, reliance was placed on the decision in Petition No. 30 of 2013 Kariithi & Another -vs- Attorney General & Another 2021 (KEHC 308 (KLR where it was observed;
54.In the end, the 1st Respondent submitted that the Petition was instituted in vain. It prayed that it be dismissed with costs.
2nd Respondent’s, The 1st & 2nd Interested Partys’ Case
55.The Attorney General, the 1st Respondent herein, on behalf of The Principal Registrar of Persons and The Director of Criminal Investigations the 1st and 2nd Interested Parties herein respectively, opposed the Petition through Grounds of Opposition dated 23rd June 2022.
56.It was its case that the Petition is fatally defective in so far as it sought to have section 22(2) of the Elections Act unconstitutional since such invitation is in direct violation of Article 137(1) of the Constitution as appreciated alongside Article 99 which set eligibly requirements for election as a member of parliament.
57.It asserted that the Petition was an abuse of the Court process as it fails to appreciate that section 22(2)of the Elections Act is a derivative of the objects of the provisions of Article s 137(1) and (9)(b) of the Constitution and that in interpreting the said section, the Court has to balance its objects against the constitutional provisions and the executive authority of the Office of the President as opposed to the office of Member of Parliament .
58.It was urged that the Petition be dismissed on the ground that the Petitioner’s reliance on academic qualifications of Members of Parliament to be the same educational qualification as the president’s failed to appreciate that qualifications for the two offices as established by the constitution are different due to the nature of their constitutional functions.
59.The 2nd Respondent resounded the 1st Respondent’s claim that the Petition was lacking in precision for not disclosing any constitutional entitlement threatened or violated.
60.The Attorney General stated that the Petitioner failed to appreciate the principles of purposive and harmonized interpretation of the Constitution as set out in Article 259 to the effect that Articles 137(1) and 99(2) are not in conflict but rather promote the purpose, values and principles of the Constitution.
61.Support of the foregoing provision was found in the case of County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated) [2021) and it was submitted that to equate the academic qualifications of all elective positions in Kenya at par, without any differentiation and without regard to the different attending responsibilities, and by disregarding the different remuneration and benefits, runs contrary to the Constitutional edicts.
62.In their written submissions dated 28th June 2022, the 2nd Respondent, the 1st and 2nd Interested Party submitted that there was nothing in the body of the Petition as the basis or evidence for the Director of Criminal Investigation to be compelled to conduct investigation of Identity Cards collected by all the presidential candidates to verify if they were legitimately obtained from their respective supporters.
63.While referring to Article 245(2)(b) of the Constitution, it was its case that the it is only the Inspector General of The National Police Service that has independent command over the National Police Service.
64.They hastened to add that under Article 157(4) of the Constitution, only the Director of Public Prosecution can give direction to the Inspector general of Police to investigate any information or allegation of criminal conduct.
65.It was its case further that the Court can only add to the foregoing and order the Director of Criminal Investigations or the Inspector General of Police to investigate but only in situations where there is a live matter in Court where the said Offices are parties or enforcement requires the assistance of the said offices.
66.In sum, it was submitted that the court has been presented with abstract orders and prayers that are not backed by any real controversies to warrant the court to invoke its powers to order the director of Criminal Investigations to Investigate the identity cards of Kenyan citizens supporting the candidature of presidential candidates as a constitutional and statutory requirement in the forthcoming general elections.
67.In the end, it was urged that the Petition be dismissed for failing to disclose a cause of action against the 2nd Respondent, the 1st and 2nd Interested Parties.
Issues for determination:
68.This Court has carefully perused the documents filed by the respective parties and it has discerned the following issues for determination: -
69.The Court will, hence, deal with the issues sequentially.
i. Preliminary issues:
70.It is important to note that the Petitioners herein instituted the Petition subject of this judgment in order to variously contest the eligibility of independent candidates to participate in elective positions in the General Elections held on 9th August, 2022 (hereinafter referred to as ‘the elections’).
71.The 1st Petitioner intended to vie for the presidency of the Republic of Kenya.
72.Given that the Petition was filed in June 2022, the Court had an extremely limited time to determine the same. The Court settled preliminary issues and rendered Ruling No. 1 on 20th June, 2022 and Ruling No. 2 on 30th June, 2002.
73.The main Petition was thereafter heard and on 18th July, 2022, this Court reserved the judgment to be delivered on notice. The Court was, however, clear that it ought to render the decision immediately as the same impacted on the elections.
74.This Court did not, however, manage to attain the foregoing as the call of duty had yours truly transferred to another station with the 1st August, 2022 as the reporting date.
75.The failure to deliver this decision before the elections, which is highly regretted, no doubt rendered several matters raised in the Petition to be overtaken by events. Once again, sincere apologies.
76.Having so said, a consideration of the rest of the issues will now follow.
ii)The constitutional and statutory principles in constitutional and statutory interpretation:
77.Constitutional interpretation also referred to as Judicial interpretation is the legal creativity of attributing or assigning meaning to the provisions of the Constitution.
78.The Constitution is a document sui generis. It is the supreme law of the land and its interpretation has over time been developed by Courts and scholars both locally and internationally.
79.Locally, Superior Courts have made pronouncements on how the Constitution ought to be interpreted. In David Ndii & Others v Attorney General & Others  eKLR, the Learned Judges, while referring to various decision of the Apex Court and the Court of Appeal spoke to the subject as follows: -
80.The Court of Appeal also spoke to constitutional interpretation in the case of Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others  eKLR when it made the following remarks: -
81.With respect to statutory interpretation, this Court, in Petition No. E290 of 2022, Victor Buoga -vs- The Hon. Attorney General & Another, (unreported) stated as follows: -
82.Having set out the parameters for constitutional and statutory interpretation, this Court will now deal further.
(iii) Whether Regulations 18(2), 24(2), 28(2), 32(2)(c) and 36(2)(c) of the Election (General) Regulations, 2017 requiring independent candidates for the various elective positions in the August 2022 General Elections to submit copies of identity cards of their supporters to the IEBC for clearance to vie are constitutional:
83.This issue was recently determined in High Court at Nairobi in Petition No. E160 of 2022 (Consolidated with Petition No. E219 of 2022, Petition No. E225 of 2022 and Petition No. 12 of 2022 (formerly High Court at Kakamega Petition No. E010 of 2022) Free Kenya Initiative & 17 Others vs. Independent Electoral Boundaries Commission & 7 Others (2022) KEHC.
84.In a judgment rendered on 5th day of July, 2022, the Court determined the issue as follows: -
85.With the above finding, this issue is, hence, res judicata.
(iv)Whether the Director of Criminal Investigations should be directed to institute investigations on inter alia the manner the copies of identity cards presented to the IEBC by various aspirants in the run-up to the 8th August, 2022 General Elections were obtained:SUBDIVISION - (v) Whether it is constitutional for State officers and other public officers to campaign for candidates running for various political offices in elections:
86.An identity card is a personal document. Whereas many copies of identity cards were truly forwarded to the IEBC as was required under the then law, any claim on the manner in which such copies were obtained ought to be lodged the holders of such cards.
87.A holder of an identity card which was used in the circumstances herein and who in one way or another is aggrieved ought to lodge an appropriate complaint with the law enforcement agents.
88.It will, therefore, be premature and without any sound basis for this Court to assume that offences were committed in the manner in which the cards were obtained and to ask the police to act. Such an assumption goes contrary to the settled principle in law that Courts must only adjudicate real disputes and not otherwise.
89.Buttressing the foregoing position, the High Court in Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Parties) (Constitutional Petition E090, E168, E221, E230, E234, E249, E017, E109 & E010 of 2022 (Consolidated))  KEHC 3209 (KLR) (Constitutional and Human Rights) (24 June 2022) (Judgment), rightly so, stated as follows: -
90.Since there are no actual disputes by the holders of the identity cards regarding the manner in which copies of their respective identity cards were obtained, the issue is a non-starter and is hereby answered in the negative.
91.The Petitioners strenuously contended that State officers were actively involved in political campaigns and were openly championing the interests of the candidate which found support with the then government. They urged this Court to sanction such conduct.
92.The participation of public officers in political activities is limited by the need to have neutrality in service delivery.
93.Section 12(1) of Political Parties Act, No. 11 of 2011 precludes public officers from engaging in politics in the following manner: -
(vi) Whether Section 22(2) of the Elections Act which requires a presidential candidate to possess a degree qualification from a recognised university as read with Section 22(1)(b)(i) of the Elections Act contravenes Article 137(1)(b) of the Constitution:
103.The Petitioners vehemently contended that the degree requirement for one to run for the Presidency in Kenya was unconstitutional. The basis of the argument was this Court’s decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated))  KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment). The decision was delivered on 13th April, 2022.
104.In the said case, the Court considered the constitutionality of Section 22(1)(b)(i) of the Elections Act. The Court made the following orders: -
105.It was, therefore, the Petitioners’ argument that since Section 22(1)(b)(i) of the Elections Act was nullified, thereby removing the university degree requirement for Members of Parliament, then the provision of Section 22(2) of the Elections Act cannot stand going by Article 137(1)(b) of the Constitution which sets the eligibility qualifications for Members of Parliament and the President at par.
106.Section 22 of the Elections Act provides as follows: -Nominations and Elections Generally22. Qualifications for nomination of candidates
107.Article 137 of the Constitution provides as follows: -
108.A consideration of the provisions of Section 22(1)(b)(i) of the Elections Act, Article 137(1)(b) of the Constitution and the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case (supra) reveal that as long as the said decision stands, then Section 22(2) of the Elections Act which makes it mandatory for a Presidential aspirant to possess a university degree in conflict with Article 137(1)(b) of the Constitution which fronts the position that one is qualified to stand for election as a President if such is qualified to stand for election as a Member of Parliament.
109.Article 137(1)(b) of the Constitution, therefore, places the eligibility requirements of a President and a Member of Parliament at par. Alike position relates to the eligibility requirements between a County Governor and a Member of County Assembly where Article 180(2) of the Constitution also places them at the same level.
110.The foregoing being the dictates of the Constitution, makes any law that will effectively vary the eligibility requirements between a President and a Member of Parliament to be a nullity.
111.In this case, since the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case (supra) removed the requirement for a university degree for a person standing as a Member of Parliament, and the said decision has not been stayed or set-aside, then Section 22(2) of the Elections Act cannot mandatorily state that regardless of any other provision stating otherwise a Presidential candidate must posses a university degree. Section 22(2) must be in harmony with any other provision on the eligibility of a President.
112.If Section 22(2) of the Elections Act provides a different eligibility criterion for a presidential candidate than that provided for in Wambui & 10 Others v Speaker of the National Assembly & 6 others case (supra) then the provision, in so far as the inconsistency is concerned, creates a disharmony between the eligibility criteria for Members of Parliament (no requirement for a university degree) and the President (must possess a university degree), and to that end, the provision can only be in contravention of the Constitution.
113.If the above position is allowed to stand, then that will be an affront to the supremacy of the Constitution as enshrined in Article 2 of the Constitution.
114.Buttressing the above further, a recall is made to a discussion on the use of the word ‘Notwithstanding’ in Section 22(2) of the Elections Act. That was in Buoga v Attorney General & another (Constitutional Petition E290 of 2022)  KEHC 13214 (KLR) (Constitutional and Human Rights) (30th September, 2022) (Judgment).
115.In that case, the Court rendered itself as follows: -
116.On the basis of the above, this Court summed up the unconstitutionality of Section 22(2) in respect to the eligibility of County Governors as follows: -
117.Having said so, the prevailing position in this matter is, hence, that as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case stands (which decision removed the requirement for a university degree for a person standing as a Member of Parliament), then Section 22(2) of the Elections Act cannot hold in demanding a university degree requirement for a presidential aspirant.
118.In the end, it is the finding and holding of this Court that Section 22(2) of the Elections Act is unconstitutional for mandatorily demanding that a presidential aspirant must possess a university degree as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated))  KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment) stands.
119.In other words, if the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others case continues to hold and a provision requiring Members of Parliament to possess university degrees is enacted within the confines of the Constitution and the law, then, and until then, Section 22(2) of the Elections Act as relating to the presidential qualifications will be in line with Article 137(1)(b) of the Constitution. However, before then, Section 22(2) of the Elections cannot stand in so far as the eligibility criterion for a presidential candidate is concerned.
(vii) Whether the collection of fees on the registration of candidates in elections in Kenya by IEBC is contrary to the Constitution:
120.The Petitioners cited harsh economic times as the basis of restraining IEBC from levying charges on aspirants and candidates. They held that the fees were punitive.
121.For the Petitioners to succeed in such a ground, they ought to avail evidence proving the current economic status of the country, how the economy has been performing and how the levying of the administrative fees by IEBC has on aspirants and candidates, as a standalone parameter, led to the economic situation complained of. Such may include expert and empirical evidence. That nexus must be demonstrated on a preponderance of probabilities.
122.Again, the Petitioners failed to do so. Apart from pleading as much, there is no evidence connecting the levying of the administrative fees by IEBC on aspirants and candidates and the economic performance of the country and how that would be contrary to the Constitution.
123.The issue, therefore, fails and is for rejection.
(viii) Whether the 1st Petitioner was discriminated by the IEBC in refusing to accept her nomination papers for the presidency towards the General Elections held on the 8th August, 2022:
124.The Petitioners contended that the 1st Petitioner was discriminated by IEBC in rejecting her nomination papers.
125.On its part, IEBC contended that it did not discriminate the 1st Petitioner in any way since she did not meet the eligibility criterion then in law.
126.Before this Court deals with the matter further, it must be noted that by the time the 1st Petitioner presented her nomination papers to IEBC as an independent candidate, the law had it that independent candidates were to submit copies of the identity cards of their supporters and that presidential candidates were to be holders of university degrees. The legal requirement on copies of identity cards was quashed, but much later whereas the requirement on the degree qualification is subject of the instant judgment.
127.In this case, the 1st Petitioner did not demonstrate that she duly qualified as the law required. She neither presented any evidence that she held a university degree nor did she tender any evidence that she presented the copies of the identity cards of her supporters, but nevertheless the IEBC still rejected her nomination papers. Therefore, the rejection by the IEBC to clear the 1st Petitioner to run for the presidency cannot be escalated to any aspect of discrimination.
128.Further, the circumstances in this case do not in any way fall within any aspects of discrimination as was discussed at length in a Multi-Judge bench in Petition 56, 58 & 59 of 2019 (Consolidated), Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties)  eKLR.
129.This Court believes that dealing with the issue further will not add any credence to the Petitioners’ case and, therefore, opts to rest the matter.
(ix) Whether the processes undertaken by IEBC towards the General Elections held on the 8th August, 2022 were so flawed so as to render the said elections null and void:
130.The Petitioners levelled very serious allegations against the IEBC on the credibility of the last General elections. The allegations, save for the issues discussed above, were mainly in an omnibus fashion.
131.It is the law that elections are a product of series of events. Election is a process and not an event. The events begin right from nomination of candidates running all the way to the declaration of the results by IEBC.
132.The law also places the responsibility of dealing with disputes that may occur during the electoral process on several entities. They include the political parties internal dispute resolution mechanism, the IEBC Dispute Resolution Committee, the Political Parties Dispute Tribunal or the Courts.
133.It, therefore, means that a party alleging any infraction of the electoral process must present a precise complaint before the right forum. Such a scheme of affairs negates a scenario where omnibus claims are presented.
134.The array of complaints levelled against the IEBC cannot be dealt with in the absence of precision. As said, a party must plead with specificity and precision otherwise such a pleading will not stand.
135.This Court now finds that the numerous allegations bundled up against the IEBC as a whole cannot be, properly so, dealt with by this Court. This Court is unable to ascertain whether the processes undertaken by IEBC towards the General Elections held on 8th August, 2022 were so flawed so as to render the entire elections null and void.
136.The issue is, hence, for rejection.
137.From the above analysis, the Petition has partly succeeded. Whereas the Petitioners, on one hand, failed to inter alia prove that the processes undertaken by IEBC towards the General Elections held on 8th August, 2022 were so flawed so as to render the entire elections null and void, the 1st Petitioner was discriminated in not being allowed to present her nomination papers to the IEBC, the levying of the administrative fees by IEBC on aspirants and candidates was unconstitutional, they have, on the other hand, succeeded in some grounds.
138.Resulting from the partial success, the following findings and conclusions arise in this matter: -a.With an exception of Cabinet Secretaries and County Executive Committee Members, the rest of the State officers and public officers are restrained from engaging in political activities such as may compromise, or be seen to compromise the political neutrality of their office.b.Section 22(2) of the Elections Act is unconstitutional for mandatorily demanding that a presidential aspirant must possess a university degree as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated))  KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment) stands.
139.In the end, this Court hereby determines the Petition in the following terms: -a.A Declaration hereby issues that with an exception of Cabinet Secretaries and County Executive Committee Members, the rest of the State officers and public officers be and are restrained from engaging in political activities such as may compromise, or be seen to compromise the political neutrality of their office.b.A Declaration hereby issues that pursuant to Article137(1)(b) of the Constitution, the qualification for the election of a Member of Parliament is similar to the eligibility for election of a President.c.A Declaration hereby issues that Section 22(2) of the Elections Act is unconstitutional for mandatorily demanding that a presidential aspirant must possess a university degree as long as the decision in Wambui & 10 Others v Speaker of the National Assembly & 6 others (Constitutional Petition 28 of 2021 & Petition E549, E077, E037 & E065 of 2021 (Consolidated))  KEHC 10275 (KLR) (Constitutional and Human Rights) (13 April 2022) (Judgment) stands. To that end, Section 22(2) of the Elections Act, No. 24 of 2011 currently contravenes Article 137(1)(b) of the Constitution by creating an avenue for differentiation between the eligibility requirements between Members of Parliament and the President, hence, to that extent it is unconstitutional.d.As the country has just held a General election and there is a likelihood of filing of election Petitions variously contesting the Presidential position, then, with a view of forestalling an avalanche of Petitions by those who were ineligible by dint of the impugned section and coupled with the late filing of the instant Petition, the declaration of unconstitutionality of Section 22(2) of the Elections Act shall take effect in the next General election.e.Being a public interest litigation, each party shall bear its costs.
DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF DECEMBER 2022.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Nazlin Omar Fazaldin Rajput, the 1st Petitioner and also appearing on behalf of the 2nd Petitioner.Mr. Thande Kuria, Learned Counsel for the 2nd Respondent and 1st and 2nd Interested Parties.Mr. Nura, Learned Counsel for the 1st Respondent.Kirong/Regina – Court Assistants.