Mulili v Kenya Judicial Staff Association Elections Board & 13 others (Constitutional Petition E187 of 2021)  KEHC 2685 (KLR) (Constitutional and Human Rights) (31 March 2023) (Ruling)
Neutral citation:  KEHC 2685 (KLR)
Republic of Kenya
Constitutional Petition E187 of 2021
AC Mrima, J
March 31, 2023
Lazaro Mutua Mutula Mulili
Kenya Judicial Staff Association Elections Board & 13 others
1.The Petition herein is a challenge to the election of the officials of the Kenya Judicial Staff Association. The election was carried out on the 15th May, 2021 by Admedia Communications Limited, the 2nd Respondent herein on behalf of the Kenya Judicial Staff Association Elections Board, the 1st Respondent.
2.Out of the said election, the 4th to 14th Respondents were appointed as the officials of theKenya Judicial Staff Association (hereinafter referred to as ‘the Association’).
3.Dissatisfied with the outcome of the election carried out on 15th May, 2021 (hereinafter referred to as ‘the impugned election’), the Petitioner herein instituted the instant Petition. The Petitioner also filed a Notice of Motion dated 26th May, 2021 seeking some conservatory orders.
4.In response to the Petition and the application, the 1st, 4th to 14th Respondents filed inter alia a Notice of Preliminary Objection dated 31st May, 2021 in which they impugned the jurisdiction of this Court. I will hereinafter collectively refer to the 1st, 4th to 14th Respondents as ‘the objectors’).
5.The objection was heard by way of written submissions, hence this ruling.
6.The 2nd Respondent supported the objection whereas the Petitioner strenuously opposed it. The 3rd Respondent did not take part in the hearing of the objection.
7.On this Court’s directions, parties filed their respective elaborate written submissions. The parties centred their submissions mainly on the second limb of the objection which was in respect to the jurisdiction of this Court on the basis of the doctrine of exhaustion. They also filed Lists of Authorities.
8.This Court is indeed grateful to all the parties for such elaborate and exhaustive submissions thereby making its work relatively simple.
9.Given the length and nature of the submissions, I will not reproduce the same verbatim in this ruling. However, I will consider the parties’ positions, arguments and decisions referred to in the discussion herein.
10.The objection was tailored as follows: -
11.The objectors strongly argued that the dispute before Court squarely falls within the jurisdiction of the Election Commission as established in the 1st Respondent’s Election Rules and Guidelines under the Constitution of the Kenya Judicial Staff Association. I will hereinafter refer to the Election Commission as ‘the Commission’, the Constitution of the Kenya Judicial Staff Association to as ‘the Constitution’ and the 1st Respondent’s Election Rules and Guidelines to as ‘the Election Rules’.
12.The Petitioner vehemently disagreed with the Respondents. He contended that whereas the said Election Rules accorded any party dissatisfied with an election to file an Election Petition before the Commission, the Rules used the word MAY, thereby according the Petitioner a choice on where to prefer his claim. Further, the Petitioner contended that the Commission was not an appropriate forum to adjudicate the dispute since it was the body which carried out the impugned election.
13.Going forward, since the objection is centered on the doctrine of exhaustion, I will now briefly deal with the legal position of the doctrine of exhaustion and its applicability in this matter.
14.The doctrine of exhaustion in Kenya traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -
15.Clause 3 is on traditional dispute resolution mechanisms.
16.The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:
17.The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
18.The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others  eKLR held as follows: -
19.Further, in Civil Appeal 158 of 2017, Fleur Investments Limited v Commissioner of Domestic Taxes & another  eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly v Njenga Karume [1990-1994] EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -
20.Courts have in many occasions reiterated the position that where there are alternative avenues legally provided for in dispute resolutions, there should be postponement of judicial consideration of such disputes until after the available avenues are fully adhered to or unless it is adequately demonstrated that the matter under consideration falls within the exception to the doctrine of exhaustion.
21.Returning to the matter at hand, the Petition seeks the following prayers: -
22.This Court has carefully considered the parties’ positions alongside the manner in which the Petition was framed. It has, as well, considered inter alia the Constitution and the Election Rules.
23.The Petition mainly raises two points of challenge. First, the manner in which the impugned election was conducted, and, second, the infringement of the Petitioner’s privacy rights under Article 31(c) of the Constitution.
24.I will, henceforth, ascertain whether the doctrine of exhaustion applies to any of the two points raised in the Petition.
25.In respect to the impugned election, there is no dispute on the existence of the Election Rules. The said Rules provide for Election Petitions. The Rules state as follows: -Election Petitions:
26.The Petitioner in response to the objection admitted that indeed an aggrieved party may file a Petition before the Commission. He, however, contended that the Election Rules were not mandatory in nature in the use of the word ‘may’. He also raised the unlawfulness and insufficiency of the Commission as the alternative forum for the adjudicating the dispute. The Petitioner referred to several decisions in support of the arguments.
27.This Court has carefully considered this issue. At this point in time, it is important for the parties to understand that the doctrine of exhaustion does not contend that a Court has no jurisdiction over a dispute. However, the doctrine recognises the jurisdiction of a Court over the dispute, but favours a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. In other words, a Court will postpone jurisdiction on the basis of the doctrine of exhaustion so as to accord an opportunity to an entity established by a statute or by any other lawful instrument to deal with the matter as a first port of call. The only exception to this longstanding understanding of the operation of the doctrine of exhaustion is where it is adequately demonstrated that the matter under consideration falls within the exception(s) to the doctrine of exhaustion.
28.Bearing in mind the foregoing, the argument fronted by the Petitioner on the use of the word ‘may’ can only be interpreted in the context of this matter to mean an option on the part of the aggrieved party where any of the exceptions to the doctrine of exhaustion apply. It is on that score that this Court will now ascertain if any of the exceptions do apply in the unique circumstances of this matter.
29.In attempting to demonstrate the inapplicability of the exhaustion doctrine, the Petitioner contended that ‘…. the Commission is the same body that conducted and supervised the impugned elections and as such it cannot make a just and unbiased decision on a Petition that questions how the elections were conducted….’
30.Whereas the Petitioner may have raised an issue worth consideration, this Court declines to agree with him at this point in time for two reasons. One, the constitutionality and legality of the Election Rules is not part of the instant Petition. Two, the issue has not been in any raised in the matter save in the Petitioner’s submissions.
31.Back to the Petition, prayers (b), (d), (e), (f) and (g) of the Petition are in respect of the manner in which the impugned election was conducted. As such, the issues are within the confines of the Commission courtesy of Rules 1 and 2 of the Election Rules.
32.Resulting from the above discussion, this Court finds that the doctrine of exhaustion applies to the issues raised in the Petition and which issues culminated with prayers (b), (d), (e), (f) and (g) of the Petition. To that extent, this Court will decline jurisdiction over the issues relating to prayers (b), (d), (e), (f) and (g) of the Petition.
33.Turning to the Petitioner’s contention of infringement of his privacy rights under Article 31(c) of the Constitution, this Court’s attention has been drawn to the provisions of the Data Protection Act, No. 24 of 2019 (hereinafter referred to as ‘the Data Act’).
34.The Preamble of the Data Act states that it is an Act of Parliament to give effect to Article 31(c) and (d) of the Constitution; to establish the Office of the Data Protection Commissioner; to make provision for the regulation of the processing of personal data; to provide for the rights of data subjects and obligations of data controllers and processors; and for connected purposes.
35.Article 31(c) and (d) of the Constitution provides as follows: -
36.The Data Act further provides for the rights of a data subject, the enforcement of rights of data subjects, investigation of complaints by data subjects, compensation for breach of the rights of data subjects, the registration of data controllers and data processors, the principles and obligations of personal data protection, processing of sensitive personal data, among many other aspects of personal data.
37.Section 3 of the Data Act provides for the objectives as follows: -The object and purpose of this Act is-
38.Section 5 of the Data Act establishes the Office of the Data Protection Commissioner which is a body corporate with perpetual succession and a common seal and has the power to conduct business in its corporate name. I will hereinafter refer to the said office as ‘the Data Commissioner’’ or ‘the Commissioner’.
39.One of the many functions of the Data Commissioner is provided for in Section 8(1)(f) as ‘to receive and investigate any complaint by any person on infringements of the rights under this Act’.
40.The Commissioner further has powers to conduct investigations on its own initiative, or on the basis of a complaint made by a data subject or a third party. That is provided for in Section 9(1)(a) of the Data Act.
41.In discharging its functions and exercising its powers, the Commissioner is authorized under Section 59 of the Data Act to seek the assistance of such person or authority as it deems fit and as is reasonably necessary to assist the Data Commissioner in the discharge of the functions.
42.Section 65 of the Data Act gives the Data Commissioner the power to determine the compensation payable to a data subjectwho suffers damage by reason of a contravention of any requirement of the Data Act and in instances where the Commissioner finds as much.
43.With a view to protect the integrity of the processes under the Data Act, the statute provides for enforcement notices under Section 58 in respect of those who failto comply with any provision of the Data Act.
44.Under Section 64 of the Data Act, any appeal from the decision of the Commissioner lies to the High Court.
45.A close scrutiny of the Data Act reveals a deliberate design to ensure that all claims arising from allegations of infringement of Article 31(c) and (d) of the Constitution are wholly dealt with by the Commissioner as the first port of call. Such position can only be overruled by a party demonstrating any of the exceptions to the doctrine of exhaustion in a matter.
46.Returning to the Petitioner’s contention at hand, this Court finds that the Petitioner has not demonstrated any of the exceptions to the doctrine of exhaustion relating to submitting to the provisions of the Data Act in respect of the allegations of infringement of his privacy rights.
47.With this finding, this Court also declines jurisdiction over the issues raised and culminating with prayers (a) and (c) of the Petition.
48.Deriving from the above discussion, this Court, therefore, postpones jurisdiction over the issues raised in the Petition which matters culminated with all the prayers in the Petition.
49.Having declined to entertain the Petition on the doctrine of exhaustion, this Court finds no need to deal with the first limb of the objection on whether the Petition herein is sub-judice Chief Magistrates Court at Milimani Civil Suit No. E8405 of 2021 Lazaro Mutua Mutula Mulili vs. The Kenya Judicial Staff Association Elections Board & 13 Others. The reason is simply that the instant Petition has been rendered otiose by the Court’s finding on the second limb of the objection.
50.With such a finding, the objection is determined as follows: -(a)This Court hereby declines jurisdiction to hear and determine the Petition on the basis of doctrine of exhaustion.(b)The Notice of Preliminary Objection dated 31st May, 2021 is hereby allowed with costs.(c)The Petition and Notice of Motion dated 26th May, 2021 are hereby struck out with costs.Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 31ST DAY OF MARCH, 2023.A. C. MRIMAJUDGERuling No. 1 virtually delivered in the presence of:Mr. Shikali, Counsel for the Petitioner.Mr. Otieno, Counsel for the 1st, 4th -14th Respondents.Mr. Mango, Counsel for the 2nd Respondent.Regina/Chemutai – Court Assistants.