Chumba & another v Independent Electoral and Boundaries Commission & 5 others (Constitutional Petition 22 of 2022)  KEHC 289 (KLR) (27 January 2023) (Ruling)
Neutral citation:  KEHC 289 (KLR)
Republic of Kenya
Constitutional Petition 22 of 2022
RN Nyakundi, J
January 27, 2023
Reginah Chepkemboi Chumba
Robert Kiptanui Kering
Independent Electoral And Boundaries Commission
United Democratic Alliance Party (UDA)
Wachira James Maina
Tirop Belinda Chebichii
Waiganjo David Waweru
Tirop Everylne Chepkoech
1.What is before this court is the notice of preliminary objection dated November 14, 2022. The 2nd respondent objected to the petition 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 section 75(1A) of the Elections Act as read with rules 3 and 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.2.That the petition is bad in law and an abuse of the court process and ought to be struck out with costs to the 1st respondent.
2.The parties were directed to file submissions on the notice of preliminary objection.
3.The 2nd respondent submitted that the honourable court lacks jurisdiction to hear and determine the issues raised therein pursuant to section 75 (1 a) of the Elections Act, 2011 and rule 6 (1) (b) of the Elections (Parliamentary and County Elections) Petition Rules, 2017. Further, that the petition does not disclose violations of the Constitution or the law and finally, that the petition is an abuse of court process.
4.Learned counsel for the 2nd respondent cited the cases of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited, Kalpana H Rawal & 2 others v Judicial Service Commission & 2 others (2016) eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012) eKLR on jurisdiction. He further submitted that it is manifest from the factual foundations of the petition that the petitioners’ actual gravamen relates to the nomination of members of the county assembly of Uasin Gishu. Further, that the substratum of the petition before court is the nomination of persons to fill in the special lists being the marginalized list and the gender top up list.
5.Even though article 165 (3)(d) of the Constitution vests in this court jurisdiction to determine questions whether anything said to be done under the authority of the Constitution is consistent with or contravenes the Constitution, that jurisdiction is deferred by the provisions of section 75 (1A) of the Elections Act which clearly states that;
6.Learned counsel relied on the case of Orange Democratic Movement v Yusuf Ali Mohamed & 5 others  eKLR where the court held that the High Court has no jurisdiction in these types of cases. The Elections Act has given jurisdiction to the Magistrates Court and the same has been enacted under the authority of the Constitution. Thus, it follows that the jurisdiction of the Magistrates’ Court to hear and determine election petitions relating to membership of the county assembly has a constitutional underpinning. He cited the case of Moses Mwicigi and 14 others v Independent Electoral and Boundaries Commission and 5 others SCK. Petition No. 1 of 2015  eKLR to buttress this argument.
7.The 2nd respondent stated that the issues raised in the petition ought to be heard and determined by the Magistrates Court as it is clear that post-gazettement electoral disputes relating to membership to a county assembly is vested upon the Magistrates Court.
8.The 2nd respondent contended that the petition is an abuse of the court process in view of the absence of jurisdiction or any violation of the Constitution. Learned counsel urged the court to dismiss the petition with costs.
9.The 1st respondent supported the preliminary objection and filed submissions on December 22, 2022. It cited the following cases on jurisdiction;the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR1,Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others (2012) eKLR and Benson Makori Makworo v Nairobi Metropolitan Services & 2 others (2022) eKLR.
10.Learned counsel also relied on section 75 A of the Elections Act and rule 3 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 as read with rule 6 and submitted that the dispute herein emanates from the nomination and subsequent gazettement of the 3rd to 6th respondents as the nominated members of county assembly for Uasin Gishu county assembly. Further, that the said nomination and gazettement of the 3rd to 6th respondents as the nominated members of county assembly for Uasin Gishu county assembly constitutes an election and any disputes arising therefrom ought to be filed before an election court as stipulated under section 75 A of the Elections Act as read together with rules 3 and 6 Elections (Parliamentary and County Elections) Petition Rules, 2017.
11.The 1st respondent maintained that the petition ought to be dismissed with costs.
12.There are no submissions on record for the petitioners with regard to the preliminary objection despite the court directing that the parties prosecute the preliminary objection by way of written submissions. The petitioner however filed submissions on the petition.
Analysis and Determination
13.It is trite that a preliminary objection ought to be based on points of law. Sir Charles Newbold in the celebrated case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (I969) EA 696 defined a preliminary objection as follows:
14.From the preliminary objection, it is evident that the points of law raised by the 2nd respondent, which shall form the issues for determination are;1.Whether this court has jurisdiction to hear the petition.2.Whether the petition discloses any constitutional violations.
Whether this court has jurisdiction to hear the petition
15.The locus classicus for jurisdiction is the celebrated case of the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR1 where the court stated as follows;
16.Further, the Supreme Court of Kenya in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -
17.To determine whether this court has jurisdiction, the nature of the dispute before the court must be established. The petitioner has approached this court under the guise of a constitutional petition but the main question that will settle this issue is; what is the cause of action in the petition? A perusal of the petition reveals that the dispute arises from the nomination of members of the county assembly of Uasin Gishu pursuant to the gazette notice published on September 9, 2022.
18.For all intents and purposes nomination to the county assembly is part of an election and as a result this is clearly an election dispute. The High Court was faced with a similar scenario in Orange Democratic Movement v Yusuf Ali Mohammed & 5 others  eKLR where it expressed itself as follows;49.On the question whether there is a specific constitutional or statutory bar to the High Court to entertain a constitutional petition on settlement of electoral disputes in relation to membership to a county assembly we answer in the affirmative. There is an express statutory bar to the original Jurisdiction of the High Court to handle post-gazettment nomination or electoral disputes relating to membership to the county assembly. The original jurisdiction to hear and determine post-gazettment electoral disputes relating to membership to a county assembly is vested upon the Magistrates Court. The High Court has appellate jurisdiction in respect to disputes relating to post-gazettment of members to a county assembly. The express statutory bar is section 75 (1A) of the Elections Act. The section provides:A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice. ”
19.In Jane Ochieng Muholi v IEBC & 2 others  eKLR, Lenaola J (as he then was) after analysing decisions on the issue of party nomination lists, set down the guidelines on disputes relating to party nomination lists as follows;
20.The petitioners did not provide any evidence or allude in any way that the complaint had been lodged with the 1st respondent regarding the party nomination lists.
21.Section 75 (1A) of the Elections Act states that;
22.Rule 6 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 provides as follows;1)An election court shall be properly constituted, for purposes of hearing—a)a petition in respect of an election to parliament or to the office of governor, if it is composed of one High Court judge; orb)a petition in respect of an election to a county assembly, if it is composed of a Resident Magistrate designated by the Chief Justice under section 75 of the Act.2)The Chief Justice may—a)in consultation with the principal judge of the High Court, designate such judges; andb)designate such magistrates as are necessary for expeditious disposal of petitions.3)The Chief Justice shall publish the name of the judge or magistrate designated under sub-rule (2) in the gazette and in at least one newspaper of national circulation.
23.The court takes cognizance of the constitutional provision of article 165(3) of the Constitution which clothes the court with the jurisdiction as follows;(3)Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the bill of rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of state organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.
24.This court is further guided by the wisdom of the apex court in the Supreme Court decision in Moses Mwicigi & 4 others v Independent Electoral & Boundaries Commission (2016) eKLR where at para 119 it stated;
25.In the premises, it is evident that the only avenue that was available to the petitioners for the present dispute was an election petition before a duly gazetted magistrate and not a constitutional petition. Had they filed a complaint on the issue with the 1st respondent, they might have had a better chance at being heard by this court, but they did not. The court cannot arrogate itself jurisdiction to determine the matter through judicial craft and must down its tools.
26.The upshot of the foregoing is that the preliminary objection succeeds and the petition is hereby struck out with costs to the respondents.It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET THIS 27TH DAY OF JANUARY 2023.In the Presence of Oyaro for the Petitioner....................................R. NYAKUNDIJUDGE