REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JR CASE NO. 96 OF 2013

REPUBLIC ...................................................................APPLICANT

VERSUS

COUNTY RETURNING OFFICER,                                                       

TAITA TAVETA ...................................................1^ST RESPONDENT

SECRETARY, INDEPENDENT ELECTORAL                                      

  & BOUNDARIES COMMISSION..........................2^ND RESPONDENT

   INDEPENDENT ELECTORAL                                                                  

& BOUNDARIES COMMISSION..........................3^RD RESPONDENT

AND

ELIJAH MWANDOE...................................1^ST INTERESTED PARTY

JOHN MTUTA MRUTTU.............................2^ND INTERESTED PARTY

JACINTA MWATELA.................................3^RD INTERESTED PARTY

MWANYENGELA NGALI............................4^TH INTERESTED PARTY

SOPHIE KIBAI..........................................5^TH INTERESTED PARTY  

WISDOM MWAMBURI .............................6^TH INTERESTED PARTY

EXPARTE

SARAH MUTILE MUTWIWA                                                                      

RULING

The application for consideration in this ruling is the chamber summons dated 15^th March, 2013.  Through the said application, the Applicant Sarah Mutile Mutwiwa prays for orders that:-     

1. THAT this Honourable Court be pleased to certify this matter as “Urgent” AND that service of this application on the Respondents/Interested parties be dispensed with in the first instance;
2. THAT this Honourable Court be pleased to grant leave to the Ex-parte Applicant herein to apply for Orders of Certiorari to remove into this Hounourable Court and to quash the decision(s) made by the 1^ST RESPONDENT herein whereby the said 1 Respondent did purport to:

1. accept and/or receive for counting and tallying the results of the outcome of the election of Taita Taveta Governor from Taveta Constituency as presented orally by the constituency Returning Officer, rather than digitally through the BVR kits, BVR Register and/or through other duly provided election tally forms and other materials;
2. proceed to determine and declare the results of the election of Taita Taveta County Governor while including the oral tally of votes as presented by the constituency Returning Officer, in the absence of any supporting or corroborating evidence such as a digitally submitted tally Form(s) and/or through other duly provided election tally forms and other materials;
3. accept and/or receive for counting and tallying the results of the outcome of the election of Taita Taveta Governor from Taveta Constituency as presented orally by the constituency Returning Officer, Despite the fact that the said oral results were not known and/or approved by the agents of any of the six (6) Interested parties;
4. proceed to determine and declare the results of the election of Taita Taveta County Governor while including the oral tally of votes as presented by the constituency Returning Officer, Despite the fact that the said oral results were not known and/or approved by the agents of any of the six (6) Interested Parties;
5. re-accept and/or re-receive for counting and tallying the results of the outcome of the election of Taita Taveta Governor from Taveta Constituency as presented orally by the constituency Returning Officer, Despite the fact that the said oral results had already been presented by the said Constituency Returning Officer at the same venue in the presence of the six (6) Interested parties and their agents;
6. proceed to re-determine and re-declare the results of the election of Taita Taveta County Governor while including the oral tally of votes as presented, withdrawn and represented by the constituency Returning Officer, Despite the fact that the said oral results had already been presented by the said constituency Returning Officer at the same venue in the presence of the six (6) Interested Parties and their agents;
7. proceed to determine and declare the results of the election of Taita Taveta County Governor in clear and direct contravention of the tally and final result as approved between all the Interested Parties save for the alleged winning candidate;
8. proceed to determine and declare the results of the election of Taita Taveta County Governor while under the influence of drugs and/or mild stimulants including but not limited to ‘Khat’ also known as Miraa;
9. proceed to gazette the outcome of the election of Taita Taveta County Governor despite being aware of numerous irregularities in the election;

Without the 1^st Respondent hearing the Ex-parte Applicant and/or any of the Interested Parties on the question of the validity and/or propriety or otherwise of inclusion of the aforementioned oral results from Taveta constituency in the final result Or without the 1^st Respondent giving the Ex-parte Applicant any or any valid reasons for the 1^st Respondent’s aforesaid decision And without giving any or any proper reasons for why the Gazettement should proceed in the face of these irregularities;

3. THAT this Honourable Court be pleased to grant leave to the Ex-parte Applciant herein to apply for an Order of Prohibition to be directed to the Respondents to prohibit them determining, declaring announcing, publishing and/or gazetting the election results, whether provisional or final, of the election of Governor of Taita Taveta County as required by Section 39 of the Elections Act (2011) until hearing inter partes and determination of the main motion to be filed herein;
4. THAT this Honourable Court be pleased to grant leave to the Ex-parte Applicant herein to apply for an Order of Mandamus to be directed to the RESPONDENTS to compel them to:

1. formally postpone election of the Taita Taveta County Governor as provided for under Section 73(1) of the Elections Act (2011) until appropriate remedial measures and interventions are put in place to ensure a free, fair and accountable election for the aforesaid seat;
2. secure from the 1^st Respondent a full and proper account of the total number of:

1. Ballot Boxes allocated to all seven (7) constituencies within Taita Taveta County for election of County Governor by the 2^nd and 3^rd Respondents;
2. Ballot Papers allocated to all seven (7) Constituencies within Taita Taveta County for election of County Governor by the 2^nd and 3^rd Respondents;
3. Ballot Papers issued to voters to enable them cast votes for election of Taita Taveta County Governor;
4. Votes cast in the Taita Taveta County for election of Governor, including those spoilt;

Before proceeding to declare the result for the election of the of County Governor for Taita Taveta County

3. in the alternative to the foregoing, to compel the Respondents to formally extend the Voting Period as defined in Section 2 of the Elections Act (2011) so as to allow fresh voting, verification of Ballot Boxes and the contents thereof, tallying and determination of the election results for the election of Governor for Taita Taveta County;

5. THAT grant of leave to apply for Orders of Certiorari, Prohibition and Mandamus aforesaid do operate as a stay of the 1^ST RESPONDENT’S decision to proceed to determine and declare the results for the election of Governor for Taita Taveta County despite having no powers so to do results for the election of Governor for Taita Taveta County despite having no powers so to do as provided under Section 39 of the Elections Act (2011), pending hearing and determination of the main motion to be filed within twenty one (21) days of grant of leave to apply for judicial review.
6. THAT costs of this application be granted to the Ex-parte Applicant.

The application is supported by the verifying affidavit of the Applicant and a statutory statement.  There are also documents in the court file presumably filed together with the application.

The County Returning Officer, Taita Taveta; the Secretary, the Independent Electoral and Boundaries Commission; and the Independent Electoral and Boundaries Commission (IEBC) are the 1^st, 2^nd and 3^rd respondents respectively.  Elijah Mwandoe, John Mututa Mruttu, Jacinta Mwatela, Mwanyengela Ngali, Sophie Kibai and Wisdom Mwamburi are the 1^st to 6^th interested parties.

The Applicant in her verifying affidavit introduced herself as a registered voter in Taveta Constituency of Taita Taveta County.  She averred that she voted in the election of the Taita Taveta County Governor in which the six interested parties were candidates.  Through the affidavit, the Applicant avers that the contents of the statutory statement are true.  There is nothing else of substance revealed in the verifying affidavit and there are no documents annexed to the affidavit.

According to the statutory statement, the grounds upon which the reliefs are sought are:-

1. The Respondents have gratuitously and arbitrarily declined to hear and/or give an audience to the Ex-parte Applicant and have proceeded to conduct the election of Taita Taveta County Governor amidst numerous irregularities and open bias including but not limited to:

1. neglecting, refusing and/or omitting to consult either the candidate(s) for election to the Taita Taveta County Governor seat and/or their agents on the propriety of including the aforementioned oral results from Taveta constituency in the official count/tally;
2. neglecting, refusing and/or omitting to consult either the candidate(s) for election to the Taita Taveta County Governor and/or their agents in the investigation(s) leading up to the decision and/or resolution of the dispute of whether the aforementioned oral results from Taveta constituency should be included in the final count and/or tally;
3. neglecting, refusing and/or omitting to consult either the candidate(s) for election to the Taita Taveta County Governor and/or their agents on the question of whether the aforementioned oral results from Taveta constituency were genuine, credible and procedurally submitted And whether they ought to have been included in the final counting and tallying of the election of Taita Taveta County Governor as the Respondents did proceed to do;

II.     If the Respondents have seen it fit to suspend County Ward Elections in Nyabasi West and Goke Haraka County Assembly Wards in Kuria East Constituency, And Bunyala South County Assembly Ward in Budalangi Constituency Gwasi North Ward in Gwassi Constituency as of 4^th March 2013 at 16:15 GMT + 3(4.15 p.m.), then they ought as well to suspend the election of the Governor for Taita Taveta County and having been alerted to these irregularities and having failed to take any appropriate action, this Honourable Court may justifiably proceed to issue appropriate prerogative Orders as sought;

  III.      In the event that no action is taken to urgently demonstrate to the Respondents and the Interested Parties that the electoral processes of this Republic may not be so casually abused, this Honourable Court will by default be aiding and abetting the breakdown of the Rule of Law and it is in the Public Interest that the Ex-parte Applicant be left at liberty to apply for the aforesaid prerogative Orders so as to remedy the wrongs perpetuated by the Respondents on voters generally and on the Ex-parte Applicant and allow them enjoy the un-alloyed fruits of their civil liberties without this purported irregular exercise of discretion by the 1^st Respondent brought as an afterthought so as to pervert the course of democracy and of justice;

The respondents opposed the application through a notice of preliminary objection dated 3^rd April, 2013 as follows:-

1. THAT the Application before this court is a petition to challenge the validity of a County Election enshrouded as an Application under the Law Reform Act and Order 53 of the Civil Procedure Rules.
2. THAT the Application as filed is an attempt to circumvent due process and the rigorous procedure set out in the Elections Act and Elections (Parliamentary and County Elections) Petition Rules 2010.
3. THAT this Honourable Court not being an Election Court within the meaning of Elections Act lacks the requisite jurisdiction to hear and determine this matter.
4. THAT by reason of the foregoing the application as filed is incompetent, incurably defective and an abuse of the process of this honourable court as the same is in blatant contravention of the provisions of Article 87 of the Constitution of Kenya 2010 and the provisions of the Elections Act Number 24 of 2011.
5. THAT in any event the prayers sought in the ex-parte applicant’s chamber summons have been overtaken by events as the County elections for the Governor have been completed, with the Gazettement of the 2^nd Interested Party as Governor for Taita Taveta County.

The 1^st, 3^rd, 4^th, 5^th and 6^th interested parties did not participate in these proceedings.  The 2^nd Interested Party through a notice of preliminary objection dated 20^th March, 2013 opposed the application on the ground that the Applicant’s Chamber Summons is fatally defective as the verifying affidavit does not contain any facts in support of the application.

In a further notice of preliminary objection dated 25^th March, 2013 the 2^nd Interested Party opposed the application on the following grounds:-

1. THAT Ex-parte Applicant’s Chamber Summons dated 15^th March 2013 although seeking to invoked this Honourable Court’s jurisdiction under Section 8 and 9 of the Law Reform Act, Cap 26 of the Laws of Kenya is primarily a challenge to the validity of a County Election whose procedure is governed by the Elections Act, 2011 as read together with The Elections (Parliamentary and County Elections) Petition Rules. 2013;
2. THAT this Honourable Court, not being an Election Court within the meaning of Section 2 and 79 of the Elections Act, 2011 as read together with Rule 6(3) of the Elections (Parliamentary And County Elections) Petition Rules, 2013, has got no jurisdiction to entertain or grant the reliefs sought either under the provisions cited in the said Chamber Summons or at all;
3. THAT by reason of the foregoing, the said Chamber Summons is incompetent, bad in law, misconceived and an abuse of the process of this Honourable Court in that it seeks certain relief the grant of which will run afoul the provisions of the Constitution of Kenya, 2010, The Elections Act, 2011 and the Transition to Devolved Government Act, 2012;
4. THAT there is no or no proper proceedings by way of an application for interim relief as against the purported Respondents to these proceedings in view of the express provisions of Sections 75,76,77,78,79 and 80 of The Elections Act, 2011;
5. THAT the said Chamber Summons Substantive filed herein on 18^th March, 2013 is incompetent and fatally defective having been filed at the Milimani High Court Registry contrary to the provisions of Section 75(1) of the Elections Act, 2011;
6. THAT in any event, the prayers in the said Chamber Summons have been overtaken by events as the County Elections complained of are complete and the result thereof declared.  As such this Honourable Court can neither “postpone the election” nor “extend the voting period” as sought by the Applicant.

At this stage, the question to be answered by this Court is whether the Applicant has established an arguable case for the grant of leave to commence judicial review proceedings.  In the case of AGA KHAN EDUCATION SERVICE KENYA v REPUBLIC EX-PARTE SEIF [2004] eKLR the Court of Appeal gave its guidance, as to what is expected of this Court at the leave stage, as follows:-

“We think both Mr. Inamdar and Mr. Kigano are generally agreed on the principles of law applicable in these matters. They are agreed that in order to enable a judge to grant leave under Order 53, there must be prima facie evidence of an arguable case and for that proposition both counsel rely on this Court’s decision in: IN THE MATTER OF AN APPLICATION BY SAMUEL MUCHIRI WANJUGUNA & 6 OTHERS and IN THE MATTER OF THE MINISTER FOR AGRICULTURE AND THE TEA ACT, Civil Appeal No. 144 of 2000 in which the Court approved and applied the principles to be found in the English case of R  v SECRETARY OF STATE, ex p. HERBAGE [1978] 1 ALL ER 324 where it was stated thus:

“It cannot be denied that leave should be granted, if on the material available, the court considers without going into the matter in depth, that there is an arguable case for granting leave.  The appropriate procedure for challenging such leave subsequently is by an application by the Respondent under the inherent jurisdiction of the court, to the judge who granted leave to set aside such leave – see Halsbury’s Laws of England, 4^th Edition Vol 1 (1) paragraph 167 at page 1276.”

So once there is an arguable case, leave is to be granted and the court, at that stage, is not called upon to go into the matter in depth.” 

The next question would then be whether the Applicant has, on the material presented to Court, established an arguable case.  The verifying affidavit, in a judicial review application, is the document that contains the evidence.  The Applicant’s verifying affidavit is indeed bear and does not disclose that the respondents have done anything untoward to warrant the intervention of this court.  

There are letters in the Court file which were addressed to the Chairman of the 3^rd Respondent by one Jacinta Mwatela and her counsel.  Two of the letters are dated 6^th March, 2013 and the third letter is dated 7^th March, 2013.  Through the said letters the said Jacinta Mwatela makes various allegations concerning the conduct of the election for the Taita Taveta County Governor.  The letters are, however, not properly before the Court as they were not annexed to the Applicant’s verifying affidavit.  I therefore agree with the 2^nd Interested Party that there is no evidence in support of the application.

Another issue is whether this is a proper matter for judicial review. Where there is a procedure established by the law for resolving disputes, then that procedure should be followed.  In the KIPKALYA KIPRONO KONES v REPUBLIC & 6 OTHERS [2006] eKLR case, the Court of Appeal addressed this issue at length and concluded that:- 

“We have said enough, we think to show that the procedure of judicial review, like that of a plaint or any such like procedure, is and was not available to parties aggrieved by the acts or omissions of the Commission.  We re-assert, as we previously did, that the only valid way of challenging the outcome of the electoral process, and for that purpose nominating members to the National Assembly is part of the electoral process, is through an election petition as provided in the Constitution and the National Assembly Presidential Elections Act.  Section 44 of the Constitution merely talks of an “application” being made to the High Court.  But Section 19 (1) of the Act specifically provides that the application to the High Court…..

            “shall be made by way of petition”

This has been the way, is the way and shall continue to be the way until and unless Parliament decrees otherwise.”

The position, in my view, has not changed even with the advent of the 2010 Constitution.  In fact, unlike the repealed Constitution, the current Constitution clearly tasked Parliament with the onus of enacting “legislation to establish mechanisms for timely settling of electoral disputes.”   In fulfillment of this responsibility, Parliament passed the Elections Act, 2011 and provided in Section 75. (1) that:-

“A question as to validity of election of a county governor shall be determined by High Court within the county or nearest to the county.”

The Elections Act provides for the establishment of courts to deal with electoral disputes.  The law is therefore clear that election disputes are to be heard by election courts specifically appointed to hear those disputes.  A perusal of the Applicant’s papers filed in court clearly shows that this is an election dispute which has been couched as a judicial review application.  The Applicant is therefore attempting to file an election dispute through the back door.  Such blatant attempt to circumvent the clear provisions of the law should not be entertained.

I am alive to the provisions of Article 88(e) of the Constitution as reproduced in Section 74 of the Elections Act.  Through the said provision, the IEBC is mandated to “be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”

This court in exercise of its supervisory jurisdiction is mandated to ensure that the decisions of IEBC are within the law, reasonable and in compliance with the rules of natural justice – see Article 165(6) of the Constitution. 

The disputes excluded from the jurisdiction of IEBC are “election petitions and disputes subsequent to the declaration of election results.” The application before this Court though dated 15^th March, 2013 was, as can be seen from the Court file, filed on 18^th March, 2013.  The parties herein, do not dispute the fact that by the time this matter was filed the election results for the seat of Taita Taveta County Governor had not only been announced, but had also been gazetted.  The respondents no longer had the legal authority to hear any dispute in relation to that particular election.  Almost all the prayers sought by the Applicant had been overtaken by events at the time this matter was filed.

The   Applicant actually admitted before this Court that what ought to have been done, had indeed been done since an election petition had been filed to challenge the election of the 2^nd Interested Party as the Governor of Taita Taveta County.  The Applicant cannot say that she has been left without a remedy.  

For the foregoing reasons, I find that the Applicant has not established an arguable case to enable this court grant her leave to commence proceedings for the specified judicial review orders.  Her application is therefore dismissed with costs to the respondents and the 2^nd Interested Party.

Dated, signed and delivered at Nairobi this 4^th day of October   , 2013

W. K. KORIR,

JUDGE