In settling electoral disputes, the Independent Electoral and Boundaries Commission has the powers to; conduct investigations, summon witnesses, hear complaints and make determinations thereof
The appellant, the Independent Electoral and Boundaries Commission (IEBC), through its Electoral Code of Conduct Enforcement Committee (the Committee) instituted proceedings against the respondent following comments that she had allegedly made at a public rally in contravention of clause 6(a) and (i) of the Electoral Code of Conduct (the Code). According to the IEBC, the respondent’s comments cast aspersions on the integrity of the 2017 general elections 2017, and raised credibility questions on the IEBC’s capacity to deliver a free and fair elections administered in an impartial, accurate and accountable manner. Subsequently, the respondent was summoned to appear before the Committee for hearing of the complaint against her.
The respondent appeared before the Committee but raised a preliminary objection challenging inter alia, the jurisdiction of the Committee to hear the matter. The Committee dismissed that preliminary objection. Dissatisfied, the respondent moved the High Court challenging the proceedings, together with an application for conservatory orders staying further proceedings. IEBC argued that it was empowered to: conduct its own investigations, issue summons to persons suspected to have breached the Code, examine them and arrest those suspected of having committed election offences. The High Court allowed the respondent’s petition, effectively quashing the summons and statement of breach levelled against her, as well as the proceedings conducted before the Committee. Aggrieved, the IEBC filed an appeal at the Court of which dismissed the appeal. Further aggrieved, the IEBC filed the instant appeal.
- Whether the Independent Electoral and Boundaries Commission had the jurisdiction to entertain disputes arising from nominations and to conclusively determine them.
- What were attendant powers which the Independent Electoral and Boundaries Commission could exercise when settling electoral disputes?
- Whether a member of a political party participating in an election but was not a candidate was bound by the Electoral Code of Conduct?
- What was the distinction between a cross-appeal and a cross-petition?
- What was the effect of failure to file a cross-appeal without eight copies of the memorandum and record of appeal as required by rule 47 of the Supreme Court Rules?
- The IEBC was a constitutional commission established under article 88(1) of the Constitution and further provided for under article 248(2)(c) of the Constitution. Article 252 of the Constitution provided for the general functions and powers of commissions. The IEBC was clothed with the powers to conduct investigations, either on its own initiative, or pursuant to a complaint made by a member of the public.
- The Committee was established under section 15 of the Code. Pursuant to section 15(4) to (7), the Committee was empowered to issue summons requiring attendance before it. Additionally, sections 7, 8, and 10 of the Code and rules 15(4) and 17(1) and (2) of the Rules of Procedure on Settlement Disputes conferred similar powers to the IEBC, including the imposition of sanctions. Article 252(3) of the Constitution listed the commissions and independent offices empowered to summon witnesses to include the; Kenya National Human Rights and Equality Commission; Judicial Service Commission; National Land Commission; and the Auditor-General. The object of the Code envisaged under article 88(4)(j) of the Constitution was set out in section 3 of the Second Schedule to the Elections Act.
- Article 88(4)(e) of the Constitution was clear and without ambiguity that the IEBC was tasked exclusively with the responsibility to entertain disputes arising from nominations and conclusively determine them. The Elections Act in its Second Schedule in section 15(4) empowered the Committee to issue summons requiring attendance before it. Further, the Rules of Procedure on Settlement Disputes conferred similar powers to the IEBC, including the imposition of sanctions. The Elections Act and the Regulations thereunder were normative derivatives of the principles embodied in articles 81 and 86 of the Constitution, and in interpreting them, a court of law could not disengage from the Constitution.
- The Elections Act and the Code therein were deliberately designed to enable the IEBC to perform its constitutional roles notably in articles 84, 88(4)(e), 88(5), and 252(1) of the Constitution. The IEBC could conclusively determine pre-electoral disputes. Settling electoral disputes furnished the IEBC with all requisite attendant powers to wit; conducting investigations, summoning witnesses, hearing complaints and making determinations thereof. That overlapping mandate was exceptional because it was authorized by statute and therefore was not unconstitutional. As such, the overlap did not foul the principle of natural justice, nemo judex in causa sua (no man should be a judge in his own cause).
- The Code was designed to enable the IEBC to perform its constitutional and statutory mandate. The IEBC was empowered to enforce the Code through the issuance of summons and conducting trial proceedings. To find otherwise would be to hamper IEBC’s constitutional mandate. The Code was constitutional.
- The IEBC had jurisdiction to summon witnesses and to conduct hearings in relation to a complaint of breach of the Code pursuant to article 88(4) e of the Constitution in complement with article 252(3) of the Constitution. Thus, a constitution must be interpreted purposively and holistically and as an integrated whole, each clause supporting the other and not destroying it. Article 84 of the Constitution mandated all candidates and political parties to comply with the Code prescribed by IEBC. It was clear from the Constitution and the provisions of the Elections Act, that it was mandatory for political parties, candidates, and members of the referendum committees who participated in an election or referendum under the Constitution to comply and subscribe to the Code.
- The respondent was not a candidate during the electoral period. However, at the respective time, the IEBC averred in its pleadings that she was a member of the Jubilee Party and that Jubilee Party was participating in the 2022 general elections. If that was indeed the case, it would mean that she was bound by the Code. However, the IEBC did not adduce any evidence to confirm that indeed the Jubilee Party subscribed to the Code for the election period which time was running from the January 20, 2022 to the declaration of the results of the general election that were held on August 9, 2022. Jubilee Party was also not a party in the cause. Neither could it be gleaned from the record that the IEBC adduced proof that the respondent was either a member or official of the Jubilee Party. Due to the inconclusive nature of the evidence, the respondent could not be found liable in the instant case.
- A cross-appeal was distinct from a cross-petition. While a cross-appeal was filed to institute a counter appeal in an appellate process, a cross-petition was filed to institute a counter claim before a court exercising its original jurisdiction. Besides, Part V of the Supreme Court Rules, 2020, which regulated the mode of filing appeals before the court expressly referred to a cross-appeal, as opposed to a cross-petition. The respondent ought to have filed a cross-ppeal. Rule 47(1) of the of the Supreme Court Rules, 2020, provided the procedure for filing a cross -appeal.
- From a scrutiny of the record, the cross-petition was filed without eight copies of the memorandum and record of appeal. There was no reason to depart from the Supreme Court Rules, 2020, and set procedure, as well as settled legal standards on the purpose, tenets and substance of cross-appeals. The pleadings by the respondent, ought to have been filed in adherence to rule 47 of the Supreme Court Rules. The failure to so comply rendered the cross-petition, incurably defective.
- Abwao, Daniel Ongong’a v Mohamed Ali Mohamed & 2 others (Election Appeal 5 of 2018;  KECA 408 (KLR)) — Explained
- Anami, Silverse Lisamula v Independent Electoral & Boundaries Commission & 2 others (Petition 30 of 2018;  KESC 55 (KLR)) — Explained
- Chege v Independent Electoral & Boundaries Commission (Constitutional Petition E073 of 2022;  KEHC 239 (KLR)) — Explained
- Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated);  eKLR) — Followed
- Mahamud, Mohamed Abdi v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) (Petition 7 of 2018;  eKLR) — Explained
- Mumba, Albert Chaurembo & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) (Petition 3 of 2016;  eKLR) — Applied
- Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others (Petition 2B of 2014;  eKLR) — Applied
- Munya, Gatirau Peter v Dickson Mwenda Kithinji & 2 others (Application 5 of 2014;  eKLR) — Applied
- Ojiayo, Samson Owimba v Independent Electoral and Boundaries Commission (IEBC) & another (Petition 104 of 2013;  eKLR) — Explained
- Popat, Alnashir & 7 others v Capital Markets Authority (Petition 29 of 2019;  KESC 3 (KLR)) — Explained
- Republic v Independent Electoral & Boundaries Commission & another Ex-Parte George Mbogo Ochilo Ayacko (Judicial Review 439 of 2017;  KEHC 3884 (KLR)) — Explained
- Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021;  KESC 7 (KLR)) — Followed
- Waity, Sammy Ndung’u v Independent Electoral & Boundaries Commission & 3 others (Election Petition 33 of 2018;  KESC 54 (KLR)) — Explained
- Capital Markets Act (cap 485A) — Preamble ; section 11(3) — Interpreted
- Constitution of Kenya, 2010 — article 1(1); 2 (1), (4); 3 (1); 20 (1); 22; 23, 24 (1); 27; 33; 35 (1), (3); 47 (1), (2); 50; 81(e); 82; 84; 86; 88 (4), (5); 105; 163 (4) (a); 249; 252; Chapter 15 — Interpreted
- Elections Act, 2011 (Act No 24 of 2011) — section 18; 74; 107; 109 (cc), (ff); 110 (1), (6); Schedule 2, clause 7(a); 8; 15(6) — Interpreted
- Electoral Code of Conduct (Act No 24 of 2011 Sub Leg) — clause 1; 2; 6(a), (i); 7; 8; 9; 10; 11; 12; 15; 18 — Interpreted
- National Police Service Act, 2011 (Act No 11A of 2011) — section 11 — Interpreted
- Public Service Commission Act, 2017 (Act No 10 of 2017) — section 5 (a) — Interpreted
- Rules of Procedure on Settlement of Disputes (Act No 24 of 2011 Sub Leg) — rule 15 (4); 17 (1), (2) — Interpreted
- Salaries And Remuneration Commission Act, 2011 (Act No 10 of 2011) — section 13 (1)(c) — Interpreted
- Supreme Court Act, 2011 (Act No 7 of 2011) — section 15 (2) — Interpreted
- Supreme Court Rules, 2020 (Act No 7 of 2011) — rule 38; 39; 47 (1), (2) (b); part V — Interpreted
- Teachers Service Commission Act, 2012 (Act No 20 of 2012) — section 12 (2)(c) — Interpreted
- Garner, BA., Black, HC., (Ed) (2019), Black’s Law Dictionary (St Paul, Minnesota: Thomson Reuters 11 th Edn)
Mr. Moses Kipkogei & Mr. Ochola (G & A Advocates LLP) for the Appellant
Mr. Martin Oloo (Oloo & Oloo Advocates LLP) for the Respondent