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|Case Number:||Civil Appeal 14 of 2013|
|Parties:||Nderitu Gachagua v Thuo Mathenge, Returning Officer Nyeri County & Independent Electoral and Boundaries Commission|
|Date Delivered:||20 Aug 2013|
|Court:||Court of Appeal at Nyeri|
|Judge(s):||Alnashir Ramazanali Magan Visram, Martha Karambu Koome, James Otieno Odek|
|Citation:||Nderitu Gachagua v Thuo Mathenge & 2 others  eKLR|
|Case History:||(An appeal from the Ruling and Order of the High Court of Kenya at Nyeri (Wakiaga, J.) dated 10th June, 2013 in H.C Election Petition No. 1 of 2013)|
|History Docket No:||H.C Election Petition No. 1 of 2013|
|History Judges:||James wakiaga|
An Election Petition can be filed earlier than the period prescribed in both the Constitution and the Elections Act
Nderitu Gachagua v Dr. Thuo Mathenge and 2 others
Civil Appeal No. 14 of 2013
Court of Appeal at Nyeri
By Alnashir Visram, Martha Koome, J. Otieno-Odek JJA,
On August 20, 2013
Reported by Emma Kinya Mwobobia & Obura Paul Michael
This was an interlocutory appeal from the ruling of the High Court at Nyeri on the competence of a Gubernatorial Election Petition filed therein. The fulcrum of the appeal was that the Election Petition filed in the High Court was incompetent on grounds that it was filed prematurely before the publication of the election results through a gazette notice dated 13th March 2013. That the declaration of the results not having taken place until 13th March, 2013, the Petition was incompetently before the High Court, and that the Petitioner had no cause of action.
However the High Court judge after having declared he had no jurisdiction to handle the matter, invoked the court’s inherent jurisdiction and went ahead to hear the matter.
The appellant brought to the attention of the Court of Appeal the inconsistencies between the Elections Act and the Constitution with regard to the time frame within which an Election Petition can be filed. Whereas the Constitution did not provide for the filing of an Election Petition after gazettement of election results, the Elections Act provided for it.
Jurisdiction- inherent jurisdiction- High Court’s inherent jurisdiction- where the High Court Judge initially declared he had no jurisdiction to hear a matter, only to later invoke it’s inherent jurisdiction and hear the same- when can inherent jurisdiction be invoked?- Constitution of Kenya 2010, article 159
Statute- statute Interpretation- statute interpretation on election petitions- where the time frame for filing an election petition was questioned- where the Constitution provided for 28 days after declaration of results, while the elections Act provided for 28 days after publication of election results in the Kenya Gazette- appellant alleged a conflict between the two laws- whether the Elections Act was in conflict with the Constitution in the circumstances- Constitution of Kenya 2010, article 87(2)- Elections Act, sections 76(1), 77
Article 87 of the Constitution of Kenya 2010, provides:
87 (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
(3) Service of a Petition may be direct or by advertisement in a newspaper with national circulation.
Section 76(1)(a) of the Elections Act provides:
76 (1) A petition
a) to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation.
Appeal dismissed, cross appeal allowed.
Each party to bear his own costs.
|History Advocates:||One party or some parties represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
CORAM: VISRAM, KOOME & ODEK, JJ.A)
CIVIL APPEAL NO. 14 OF 2013
NDERITU GACHAGUA ……………...….....……..……..……......... APPELLANT
DR. THUO MATHENGE ……………………................…...... 1ST RESPONDENT
RETURNING OFFICER NYERI COUNTY ….............…..... 2ND RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ………………….....….....…. 3RD RESPONDENT
(An appeal from the Ruling and Order of the High Court of Kenya at Nyeri
(Wakiaga, J.) dated 10th June, 2013
H.C Election Petition No. 1 of 2013)
JUDGMENT OF THE COURT
‘87 (1) Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission. (Emphasis added)
(3) Service of a Petition may be direct or by advertisement in a newspaper with national circulation.’
It is pursuant to Article 87(1) that the legislature enacted the Elections Act; wherein Section 76(1)(a) provides as follows:-
‘(1) A petition
a) to question the validity of an election shall be filed within twenty eight days after the date of publication of the results of the election in the Gazette and served within fifteen days of presentation.’ (Emphasis added)
It is the requirement of publication of the election results in the Kenya Gazette which the 1st respondent contends is inconsistent with Article 87(2) which only requires declaration of the results by the 3rd respondent.
‘(1) This Constitution shall be interpreted in a manner that-
a) Promotes its purpose, values and principles
b) Advances the rule of law, human rights and fundamental freedoms in the Bill of Rights
c) Permits the development of the law and
d) Contributes to good governance.'
(3) Every provision of the Constitution shall be construed according to the doctrine of interpretation that the law is always speaking …..’
'The Constitution is not an Act of Parliament but the supreme law of the land. It is not to be interpreted in the same manner as an Act of Parliament. It is to be construed liberally to give effect to the values it embodies and the purpose for which its makers framed it.'
In the persuasive Namibian case of S -vs- Acleson , 1991 (2) S.A 805, Mohamed .A. , J held,
‘The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relationship between the government and the governed. It is a 'mirror reflecting the national soul; the identification of ideals and........aspirations of a nation; the articulation of the values of bonding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore, preside and permeate the process of judicial interpretation and judicial discretion.'
Further, in determining and understanding the spirit of the Constitution we ought to take into account the language of the various provisions of the Constitution. In Kashava Menon –vs- State of Mombay (1951) S.C.R. 228, the court held as follows:-
‘A court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.’
See also the Supreme Court of Kenya decision in Samuel Kamau Macharia & another –vs- Kenya Commercial Bank & 2 others- Application No. 2 of 2011.
'The Namibian Constitution must therefore be purposively interpreted to avoid the 'austerity of tabulated legalism.'
In the case of Ndyanabo- vs- Attorney General  2 EA 485 the Court of Appeal of Tanzania held as follows:
“The Constitution is a living instrument, having a soul and consciousness of its own ….. it must be construed in line with the lofty purpose for which its makers framed it. ……… A timorous and unimaginative exercise of the judicial power of Constitutional interpretation leaves the Constitution a stale and sterile document.”
See also this Court’s decision in Equity Bank Ltd. –vs- West Link MBO Ltd. - Civil Application No. Nai. 78 of 2011.
‘The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. Constitutional provisions must be construed as a whole in harmony with each other without insubordination of any one provision to the other.'
A similar principle was enunciated by the United States Supreme Court in the case of Smith Dakota -vs- North Carolina 192 v 268 (1940) where the court held,
'It is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from the others and to be considered above but that all provisions bearing upon a particular subject are to be brought into view and to be interpreted as to effectuate the great purpose of the instrument.'
See also the case of Community Advocacy & awareness Trust & 8 others -vs- Attorney General & 5 others- High Court Petition No. 243 of 2011.
'Interpreting the Constitution is a task distinct from interpreting the ordinary law. The very style of the Constitution compels a broad and flexible approach to interpretation.'
See the case of Minister for Home Affairs & another. -vs- Fisher & another (1979) 3 ALL ER
‘Parliament shall enact legislation to establish for timely settling of electoral dispute.’ (Emphasis added'),
we are of the view that it was the intention of the framers of the Constitution that the medium and form of declaration of election results by the 3rd respondent should be provided for in the Elections Act. Having expressed ourselves as above, what then is the medium and form of the declaration of election results envisaged by the Act?
It was the 1st respondent’s case that the declaration of results envisaged by Article 87(2) was through the announcement of results by the returning officer and issuance of a certificate indicating the election of the bearer in Form 38 under Regulations 4(1), 83, & 87(3) of the Elections (General) Regulations. On the other hand, the appellant and the 2nd and 3rd respondents argued that declaration of election results as per the Constitution was through publication of the same in the Kenya Gazette. This now brings us to the bone of contention arising from the provisions of Section 76(1)(a) of the Elections Act set out above, that is, whether the requirement of publishing the election results in the Kenya Gazette is inconsistent with Article 87(2) of the Constitution and Section 77 of the Elections Act which is a replica of Article 87(2).
‘The object of all interpretation of a written instrument is to discover the intention of its author as expressed in the instrument. Therefore the object in construing an Act is to ascertain the intention of Parliament as expressed in the Act, considering it as a whole and in its context…..’
The intention of the Act is similar to the intention of Article 87 of the Constitution that is the establishment of mechanisms suitable for timely resolution of electoral disputes. According to Halsbury’s Laws of England (supra), Para 1484;
“It is one of the linguistic canons applicable to the construction of legislation that an Act is to be read as a whole, so that an enactment within it is to be treated not as standing alone but as falling to be interpreted in its context as part of the Act. The essence of construction as a whole is that it enables the interpreter to perceive that a proposition in one part of the Act is by implication modified by another provision elsewhere in the Act…” (See Amalgamated Society of Engineers –vs- Adelaide Steamship (1920) 28 CLR 129).
Therefore, does Section 76(1)(a) (a) of the Elections Act conform with the intention of the Act and the Constitution? In determining the foregoing we have to consider the Elections Act as a whole in order to establish the mode and medium of declaration of results under the Act.
At this stage we find it necessary to consider some of the provisions in the Elections Act relating to declaration of election results. Section 39 of the Elections Act provides,
‘(1) The Commission shall determine, declare and publish the results of an election immediately after close of polling.
From the above provision it is still not yet clear what is the intended medium and form of declaration of election results by the 3rd respondent under the Act. By virtue of Section 109 of the Elections Act which empowers the 3rd respondent to formulate regulations for the better carrying out of the purposes and provisions of the Act, the Elections (General) Regulations were made. The said Regulations provide, inter alia, for the mode of declaration of the result of an election. Part XIII of the Regulations provides for counting of votes and declaration of results. Regulation 83 of the Regulations whose marginal note reads “Tallying and announcement of election results” provides in part as follows;
‘83. (1) immediately after the results of the poll from all polling stations in a constituency have been received by the returning officer, the returning officer shall, in the presence of candidates or agents and observers, if present—
(a) tally the results from the polling stations in respect of each candidate, without recounting the ballots that were not in dispute and where the returning officer finds the total valid votes in a polling station exceeds the number of registered voters in that polling station, the returning officer shall disregard the results of the count of that polling station in the announcement of the election results and make a statement to that effect
(b) in the case of an election, publicly announce to persons present the total number of valid votes cast for each candidate in respect of each election in the order provided in regulation 75(2);
(c) complete Form 34 and 35 set out in the Schedule in which the returning officer shall declare, as the case may be, the—
(i) Name of the respective electoral area;
(ii) Total number of registered voters;
(iii) Votes cast for each candidate or referendum side in each polling station;
(iv) Number of rejected votes for each candidate in each polling station;
(v) Aggregate number of votes cast in the respective electoral area; and
(vi) Aggregate number of rejected votes; and
(d) Sign and date the form and
(i) Give to any candidate, or agent present a copy of the form; and
(ii) Deliver to the Commission the original of Form 34 and 35 together with Form 36 and Form 37 as the case may be.’
Regulation 87 provides,
(3) The county returning officer shall upon receipt of the results from the returning officers (from the various constituencies) contemplated under regulation (1)-
(a) Tally and announce the results for the presidential elections, elections for the county governor, senator and county woman representative to the National Assembly; and
(b) Submit all the results received from the returning officers, together with the results tallied under this regulation to the Commission; and
(c) Issue the persons elected pursuant to the results announced under paragraph (a) with certificates indicating their election in Form 38 set out in the schedule.
(4)Upon receipt of a certificate under sub- regulation (1), the chairperson of the commission shall-
(b) In the case of the other elections, whether or not forming part of a multiple election, publish a notice in the Gazette, which may form part of the composite notice showing the name or names of the person or persons elected.
(9) The returning officer shall on completion of the tallying submit provisional results to the Commission.
‘Further, it is clear that the declaration in Form 35 and 38 which the returning officer is required to complete is preceded by a public announcement of the total number of votes cast for each candidate in respect of each election. It seems therefore the declaration in Form 35 and 36 is merely a return of /or written record of the provisional election results and not a declaration of election results.’
Thirdly, from the provisions of the Article 87(2) of the Constitution, the Elections Act and its Regulations there under, it is clear that it is only the 3rd respondent who is tasked with the duty of declaring final results and not the returning officer.
‘ ‘election period’ means the period between the publication of a notice by the Commission for a presidential, parliamentary or county election under sections 14,16,17 and 19 and the gazettement of the elections results.’
From the foregoing definition we are of the considered view that the medium of declaration of election results by the 3rd respondent is through gazettement. We find that the requirement of publication of election results in the Kenya Gazette under Section 76(1)(a) of the Elections Act is not inconsistent with Article 87(2) of the Constitution. This is because firstly, the Gazette is an official document of the Government of Kenya in which official matters including official notices by the government are published. Any notice published in the Gazette is deemed as notice to the general public and one is barred from pleading ignorance of the same. Section 69 of the Interpretation and General Provisions Act, Chapter 2, Laws of Kenya provides:-
‘ The production of a copy of the Gazette containing a written law or notice, or of copy of a written law or notice purporting to be printed by the Government printer shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of the written law or notice.’
Secondly, we cannot help but note that throughout the Constitution any notices, laws and official communication by the Government are communicated to the public through gazettement. Thirdly, we agree with the finding of this Court (differently constituted) in Hassan Ali Joho & another –vs- Sulieman Said Shahbal (Supra) that the requirement of gazettement of the election results is required amongst other things to give the declared results a seal of certainty, finality and legality.
The 1st respondent argued that the kind of results contained in the Gazette dated 13th March, 2013 did not constitute election results contemplated under the Constitution. According to him, this is because the notice therein only showed the names of the elected people and did not give detailed results of the election unlike Form 36 and 37. Looking at Regulation 87(4)(b) of the Elections (General) Regulations, 2012 we are of the considered view that the form of election results envisaged to be declared through publication in the Gazette is the name or names of the persons elected. Therefore, the declaration of election results made by the 3rd respondent in the Gazette dated 13th March, 2013 was valid.
‘‘election court’ means the Supreme Court in exercise of the jurisdiction conferred upon it by Article 163(3) (a) or the High Court in the exercise of the jurisdiction conferred upon it by Article 165(3) (a) of the Constitution.’ (emphasis added)
Article 165 (3) (a) of the Constitution grants the High Court original and unlimited jurisdiction in criminal and civil matters. In fact, it is the only court that has original jurisdiction to deal with election petitions, other than Presidential election disputes. Can it simply fold its hands, and deny a petitioner redress only because such a petitioner came too early for redress, or because someone else (in this case IEBC, the 3rd respondent) has jurisdiction to deal with disputes before the publication of the results? Indeed, Article 88 (4) (e) grants the 3rd respondent jurisdiction to deal with electoral disputes before the declaration of the results. However, that does not take away the High Court's original and unlimited jurisdiction to deal with any matter brought before it. It does not “exclude” or “limit” the High Court's jurisdiction. So, both the 3rd respondent and the High Court enjoy concurrent jurisdiction over disputes prior to the declaration of the results, and the High Court enjoys exclusive jurisdiction after the declaration of results. The Supreme Court in Hermanus Phillipus Steyn –vs- Giovanni Gnecchi Ruscone – Application No. 4 of 2012 adopted the definition of concurrent Jurisdiction under the Black’s Law Dictionary which provides as follows,
‘Jurisdiction which might be exercised simultaneously by more than one court over the same subject matter and within the same territory, a litigant having the right to choose the court in which to file an action.’
In addition,, Article 88(4) (e) of the Constitution prohibits the 3rd respondent from dealing with Election Petitions which can only be heard by the High Court. Section 75 (1) of the Elections Act provides that a question as to the validity of a county election shall be determined by the High Court. Therefore, only the High Court had the jurisdiction to deal with the dispute presented in the Petition before the Court.
Secondly, and more importantly, the petitioner herein was clearly seeking multiple remedies. He filed his Petition early, prior to the gazettement of the result, primarily to challenge the right of the appellant to be gazzetted - to seek an injunction to restrain the 3rd respondent from gazetting the appellant. In such a situation, he had no alternative but to file the Petition before the results were gazetted, as the whole objective of his Petition would have been defeated. In any event, the 3rd respondent had no jurisdiction to grant an injunction, and would have certainly not been expected to grant the same against itself. So, would the petitioner be expected to remain without a remedy? We do not think so, keeping in mind all the principles of interpretation of Laws that we have outlined before in this judgment. A just, purposive, and meaningful approach to interpretation of Laws requires that we do not drive any citizen away from the seat of justice. In other words, that we find ways of leaning towards, and not against, a broader approach to determine issues of jurisdiction.
Thirdly and finally, we are of the considered view that the intention of framers of the Constitution in establishing time frame within which an election petition ought to be filed was to address the mischief of litigants who filed petitions late and not those who filed early. In R-vs- Drug Mart (1985) LRC 65, the Supreme Court of Canada held at paragraph 116,
‘The proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in light of the interests it was meant to protect…to recall the Charter was not enacted in a vacuum and must therefore…be placed in its proper linguistic, philosophic and historical contexts.’
See also S –vs-Zuma (CCT 5/94) (1995), wherein the Constitutional Court of South Africa emphasized that in taking the purposive approach in interpreting the Constitution, regard must be paid to the legal history, traditions and usages of the country concerned. We take judicial notice of the fact that historically, and from time immemorial, majority of the Election Petitions were based on a common complaint – that they were filed too late, or served too late. That was the mischief the framers of our Constitution attempted to redress. To the best of our knowledge, there has never been a case where the complaint is that it was filed too early. This is probably the first such case, and in our absurdity, we are now complaining about people coming to Courts too early, rather than late. What possible prejudice would an early bird inflict upon his opponent? We were not told of any prejudice occasioned to any of the other parties. On the contrary they had heads-up and more time to respond. We find that the learned Judge misdirected himself by holding that he had no jurisdiction to entertain the Petition simply because it was filed five days too early.
We wish to address the issue of whether a court which has no jurisdiction over a matter can invoke its inherent jurisdiction to entertain the same. Halsbury’s Laws of England 4th Edition, Vol. 10, paragraph 314, defines jurisdiction as,
‘By ‘jurisdiction’ is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.’
We are of the considered view that the learned Judge had misdirected himself by invoking his inherent jurisdiction to save the Petition despite finding that he had no jurisdiction over the same. This is because jurisdiction of the court flows from the Constitution and statute and the court could not arrogate to itself jurisdiction it didn’t have. In the matter of the interim independent Electoral Commission (Supra), the Supreme Court held,
‘Where a Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.’
See also the case of The Owners of Motor Vessel ‘Lillian s’ –vs- Caltex Oil Kenya ltd (supra). As it turns out, and as we have concluded, the High Court all along had jurisdiction to deal with the Petition, and need not have, and could not have, invoked its “inherent jurisdiction” either under the Civil Procedure Act or Article 159 of the Constitution.
Dated and delivered at Nyeri this 20th day of August 2013
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL