Catherine Muthoni Mwamra v Hamida Yaroi Shek Nuri, Independent Electoral and Boundaries Commission, Amani National Congress Party, Faith Tumaini Kombe, D.W. Mburu Principal Magistrate, Chief Magistrate’s Court Nairobi & Judicial Service Commission [2018] KEHC 8012 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  31 OF 2018

IN THE MATTER OF: THE CONSTITUTION OF KENYA ARTICLES 10,22,27,33,36,38,47,56,177,193,232 AND  249

IN THE MATTER OF: SECTIONS 34, 35, 36 AND 37 OF THE MATTER OF THE ELECTIONS ACT (NO. 24 OF 2011)

IN THE MATTER OF: THE ELECTIONS (GENERAL) REGULATIONS, 2012

IN THE MATTER OF:  THE ELECTIONS (PARTY PRIMARIES AND PARTY LISTS) REGULATIONS, 2017

IN THE MATTER OF:  THE CIVIL PROCEDURE ACT CAP 21 OF THE LAWS OF KENYA.

IN THE MATTER OF:  AN APPLICATION TO BRING JUDICIAL REVIEW PROCEEDINGS AGAINST THE CHIEF MAGISTRATE’S

COURT JUDGMENT DELIVERED ON 19TH JANUARY 2018 IN THE ELECTION PETITION NUMBER 23 OF 2017, BY WAY OF ORDERS OF CERTIORARI AND  PROHIBITION

BETWEEN

CATHERINE MUTHONI MWAMRA...................................APPLICANT

VERSUS

HAMIDA YAROI SHEK NURI…….........................1ST RESPONDENT

THE INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION …………......................................2ND RESPONDENT

AMANI NATIONAL CONGRESS PARTY.............3RD RESPONDENT

FAITH TUMAINI KOMBE……….…….....……….4TH RESPONDENT

D.W. MBURU PRINCIPAL MAGISTRATE,CHIEF MAGISTRATE’S

COURT NAIROBI…………...........................….…5TH RESPONDENT

JUDICIAL SERVICE COMMISSION…….…...….6TH RESPONDENT

RULING

1. This ruling determines  the exparte applicant’s chamber summons dated 26th January 2018 seeking leave of court to apply for Judicial Review orders of:

a. Certiorari to quash the decision of the Chief Magistrate’s  Court at Nairobi dated 19th January 2018 ordering the gazettment of the 1st respondent Hamida Yaroi Shek Nuri as duly nominated member of the County Assembly of Tana River County being the woman nominee of the  3rd respondent  in gender  top up list;

b. Prohibition, preventing the 2nd respondent IEBC from publishing  the  1st respondent  through gazette  notice  as ordered  in the decision  subject matter  herein.

c. That the leave if  granted do operate  as stay of the decision of the  5th respondent  dated 19th  January  2018

d. Costs of the application be provided for.

2. The application is predicated on the grounds on the face of the chamber summons and on the statutory statement and verifying   affidavit sworn by Catherine Muthoni Mwamra the exparte applicant herein.

3. The exparte applicant claims that she applied to the Amani National Congress party to be nominated on the party list as per the Constitution and her name was amongst other names submitted by her party to the IEBC.

4. That thereafter  the IEBC did a due diligence as required  by law  and identified  areas  where the  party list had not complied  with  the law  and returned the list  to Amani National Congress party  pointing out areas for correction after which the Amani National  Congress resubmitted  the list  having complied  with the law.

5. That upon the IEBC confirming that the party list had been corrected and  published, it invited  aggrieved  parties  to lodge their complaints either at the Political Parties Disputes Tribunal [PPDT] or to the IEBC’s  Dispute  Resolution  Committee.  [DRC].

6. That no complaints were filed at the Political Parties Dispute Tribunal or to the IEBC/DRC challenging  the  3rd  respondent (ANC’s ) party list with  respect  to Tana River County where the applicant’s  name appeared second  under the gender  top up.

7. That after the 8th August 2017 general elections, Faith Tumaini Kombe was gazetted as a nominated member of the County Assembly, Tana River County, having been first on the party list referred to.

8. That however, in the decision delivered by the CM’s Court in the petition, the court arrogated itself the mandate allocated to the IEBC by the Constitution  by bypassing  the applicant who was the second  person  on the party list without  according her  a hearing  which is  unlawful  and contrary to the dictates  of natural justice, the Constitution  and  was therefore unreasonable, and founded on irrelevant  considerations  hence it is  fair and just  that the gazettment  of the  1st respondent  is stopped/stayed.

9. The 1st  respondent Hamida  Yaroi Shek Nurifiled a replying  affidavit sworn on 7th February 2018 deposing in contention that the application is brought in bad faith, is an abuse of the court process and ought to be struck out in limine because the application is brought by the 4th respondent Faith Tumaini Kombe  masquerading/passing  off as  the  applicant herein  for  reasons that :

i. The applicant seeks to quash the election Petition trial court’s judgment  to the benefit of the 4th respondent.

ii. The applicant seeks to prohibit the gazettement of the 1st respondent.

iii. The applicant seeks to stay the Chief Magistrate’s decision to the benefit of the 4th  respondent.

iv. None of the Judicial Review orders sought or stay is beneficial to the applicant.

v. The applicant does not seek a mandamus order to be  afforded an opportunity to be heard by the election  petition court.

vi. That  the  orders of stay  sought herein  were declined  by the trial court  and  Appeal No. 5/2018  Amani National Congress and another  vs Hamida Yaroi Shek Nuri.

vii. That this application is an  abuse of court process, a waste of the  judicial time.

viii. That if the court  issues  orders  in this case  and  in HC Election Petition No. 5/2018, then the orders  will embarrass  the  court since the  alleged failure  to follow  the laid  down procedure for  resolving   the  dispute and  failure to accord  the applicant an opportunity  to  be heard  are all contained  in grounds  2,4,5 and  6  of the 4th  respondent’s  Memorandum of Association  filed on  24th January  2018.

ix. That there is no evidence to show that the  applicant  had applied  for nomination as required by the party constitution.  That the  applicant does not disclose who notified her of the court’s  decision yet  the Election  Petition  before the CM’s Court  was gazzetted  vide Kenya  Gazette Notice No. 9913   of  6th October  2017.

x. That if   the applicant  wanted to be  heard in  the election  petition she should have sought to be enjoined in the said  election petition.  That the orders issued by the CM’s court   were in order and well founded in law, based on congent  evidence and that  the  applicant  does not  sand to suffer, any  prejudice.

10. The 2nd respondent  IEBC filed  a replying  affidavit sworn by Douglas  Bargorett on  14th February 2018  deposing  a neutral position while  stating that it complied with  the law regarding  nominations and  published  a gazette notice in accordance  with the law hence it awaits the Speaker of County Assembly of Tana River  County  to issue notice of vacancy  gazettment  of the  1st  respondent  as  required under Section 19(3) of Elections  Act 2011.

11. The  5th  and  6th respondents  CM’s  court and  Judicial Service  Commission filed grounds of  opposition  dated  13th February  2018  and  a notice of preliminary  objection dated the same  day  contending that the procedure of Judicial Review is not available  to parties  aggrieved  by the outcome  of an election  process.

12. That the only valid way of challenging such an electoral  process is by way  of an Election Petition as  was held  in Speaker of National Assembly vs James Njenga Karume[1992] e KLR; Kimani Wanyoike v The Electoral Commission & Another  CA Nairobi 213/95 and Kones v Republic Exparte Kimani Wa Wanyoike [2006] 2 EA.

13. That therefore this court lacks jurisdiction to hear and determine this matter because the matter offends Section 74(1A) of the Elections Act which stipulates the manner in which County Assembly Petitions should be handled regarding validity of  member of a County Assembly election.

14. Secondly, that this Judicial Review court has not been  constituted  as the election court  in accordance with  Rule  6  of Elections (Parliamentary and County  Elections Petitions) Rules, 2017 and therefore  the judge presiding over this matter has  not been gazetted  as  required  under Rule  6(2) of the Rules.

15. Finally that there being  Petition Appeal  No. 5/2018 Amani National Congress & Another  vs Hamida  Yaroi Shek Nuri  & another  which is  an appeal  from the  decision  of Honourable D.W. Mburu, the appeal covers substantially the same  concerns  being  raised  in the application  herein hence  this application   is an abuse of the court process.

16. The parties’  advocates  argued the application  for leave   and the preliminary objection  orally on 15th February  2018  with Mr Mukele counsel for the  3rd and  4th respondents  leading the  submissions  in favour of the exparte applicant.

17. According to Mr Mukele, reiterating the  depositions  on record  by the exparte  applicant, it  was  submitted that the applicant  was neither a party nor   was she  heard in  election  petition No. 23/2017  hence the  decision  affecting  her  should be  quashed.

18. Reliance  was placed on Republic vs Chief Magistrate’s Court at Milimani exparte Violet Mutinda  to argue that their  clients  are  not interested in the appeal but in the process by which the  decision of the Chief Magistrate  was  arrived at.

19. It  was  also submitted that  Section 75(4) of the Elections Act  is clear that an appeal from the decision of the Magistrate’s Court  is only on questions of law and that the applicant will not be  allowed to adduce any evidence as such, the matter falls within the Judicial  Revenue  purview  jurisdiction.

20. It  was submitted that it is a cardinal principle that no party should  be condemned  unheard. Further, that since  the Chief Justice has not made Rules under the Fair Administrative Action Act, the Magistrate’s Court is  subject  to the Fair Administrative Action Act and that the Chief Magistrate’s Court arrogated  itself  powers of IEBC to order  the  gazettment  of the person who  was No. 3  on the party list without  considering  No. 2  who was most qualified.

21. It was submitted that where a person  has not  been heard, the  decisions of a subordinate court  must be interfered with.

22. On the contentions that this court has no jurisdiction to hear and  determine a matter arising from an election petition, it was   submitted that this court’s jurisdiction to supervise inferior  courts and tribunals is donated by the Constitution and is therefore unfettered especially where a denial of a hearing is  evident.

23. It was submitted that the existence of an election petition Appeal does not  oust the  jurisdiction of this court  in Judicial Review

24. It was submitted that his court should be persuaded by the decisions in the Republic vs The Speaker of the National Assembly & 4 Others and the case of Migiro Chadwick Kerama Mathius  vs Kenya  School of Law[2017] e KLR and  HCC JR 262/2013- Republic vs The Chief Magistrate’s Court Milimani & Others exparte Violet Ndanu Mutinda  & Another [2014] e KLR and grant the orders sought.

25.  It was  further submitted that if the  1st respondent is gazetted, then only an election petition can be lodged  hence stay should be granted.

26. Mr Ngome for the exparte applicant  submitted that Section  4 of the Fair  Administrative  Action Act  guarantees  the  right to a fair hearing and  that since  the applicant is  not challenging any election, the preliminary objection   under Section  75(4)  of the Elections  does not  hold.

27. Further, that Section  165(6) of the Constitution gives this court power to grant judicial review orders and  that all inferior  courts  are subject to Judicial Review  of this court.

28. In response, Mr Mokua counsel for the 1st respondent submitted that the grant   of leave is discretionary and not as of right. Further, that the applicant must demonstrate that she has a prima facie arguable case.

29. In this case it was submitted that the applicant’s case is not  genuine  because  Judicial Review  orders are being  sought  for the benefit of  the  4th respondent not the  applicant.  It  was submitted that the  applicant  will not benefit from prohibition or  stay but  the  4th respondent will, hence the  application is a back door  attempt  to get stay orders  in Election Petition No. 23/2017.

30. Accordingly, it was submitted that no leave should be granted on frivolous application.  It was submitted that the issue of procedure for nominations is alive in HC Elections Petition Appeal No. 5/2018.

31. Further, that the question of the applicant not being heard is ground No. 4, 5 and 6 of the Appeal.  It was submitted that if leave is granted, two High Courts shall be presiding over the same issue since the Election Petition Appeal is the alternative remedy hence the Judicial Review proceedings are not available to the applicant herein.

32.  It was also submitted that election petitions  are gazettted to invite  interested  or affected  parties  to apply  to be enjoined  hence  failure  by the applicant  to be enjoined  therein is a clear indication that she  waived  her right  to be heard  in the matter.

33. It  was submitted that Article 165(6) of the Constitution only operates   when  the  matter is before  the subordinate  court  and  that once  a judgment  is rendered, the High Court  cannot  interfere  by way  of Judicial Review.  It  was submitted that the allegations  on consideration of the applicant  for  gazettment  as she  was No. 2  on the  party list  is also before  the  Appeal court.

34. On the issue  of stay, it  was  submitted that it ought not to  be granted  as the applicant had not  demonstrated  that the main  motion would if successful be rendered nugatory.  Counsel urged the court to dismiss the application for leave and stay with costs.

35. Miss Mumbi counsel for the 2nd respondent on her part  relying  wholly  on their  replying affidavit  sworn by Douglas Bargorett clarified that the applicant was a nominee No. 2 on the gender top up list of the Amani National Congress party (3rd respondent) and that the judgment delivered by the Chief Magistrate’s Court  on 19th January 2018 ordered the IEBC to gazette the 1st  respondent  as nominee for gender  to up.  That as there is no stay, the IEBC was awaiting the Speaker of Tana River County to announce or declare a vacancy upon which they will gazette the person declared by the Chief Magistrate’s Court.

36. Mr Mokua  on behalf  of the  5th and  6th respondents  argued, his preliminary  point objecting  to the application and  reiterated  what is contained  therein while maintaining  that the right  to be heard  is a constitutional right and  a matter  of law and  that it is  one of the issues that the Elections Appeals Court  is expected  to make a determination  on.

37. Further, that the law is clear that only an election court can determine election petitions.  Reliance was placed on Konesvs Republic and Exparte Wanyoike & Others where the court of Appeal made it clear that the only process by which a member of County Assembly can be removed from office is by way of an election petition.

38. Counsel  submitted that  to allow  this matter  is to pave   way as  to who will become a member  of Tana River  County Assembly yet  only  an election  court  can issue  such orders.  The court was urged to dismiss the applicant’s application with costs.

39. In a rejoinder Mr Mukele submitted that Rule 6  of the Elections  Rules  cannot override  Article  165  of the Constitution  which gives supervisory jurisdiction to this court and that  the Elections  Act  has not  taken away  those powers  from this court.  It  was submitted that this court can call for and quash  proceedings/decisions  of subordinate  courts since  the  facts of the   case are not  disputed  that the applicant  was not  a party to the  proceedings  in the Election Court.

40. On the contention that the Election Petition was gazetted, it was submitted that the purpose of gazettment is administrative because of timelines associated with election petitions, and not an announcement to invite interested parties to be enjoined thereto.

41. Mr Mukele emphasized  that the  right to be  heard cannot be  taken away and that IEBC  had confirmed  in their replying  affidavit  that  Section  34(5)  of the Election  Act provides for nomination in the order of priority  on the party list and  that after issuance of gazette notice then only an election petition  can invalidate  the  process.

42. As such, it was submitted that a stay was necessary to preserve the status quo.

43. On the contentions  that there is a pending appeal, it was submitted that the applicant is not a party to the appeal hence these proceedings are necessary as she will not be allowed to adduce new evidence on appeal.  It was submitted that if certiorari is issued, then the appeal can lapse.

DETERMINATION

44. I have carefully considered the  applicant’s  chamber summons  for leave  and  stay, the  respondent’s  responses, the parties’  advocates oral submissions on the subject and the authorities  cited and  relied  on.

45. In my view, the main issues for determination are

i. Whether this court has jurisdiction to hear and determine this matter.

ii. Whether the applicant is entitled to the orders for leave   and stay sought.

iii. What orders should this court make?

iv. Who should bear costs of these proceedings?

46. On the first issue of whether this court has jurisdiction to hear and determine this matter, it is important to note that jurisdiction flows from either the Constitution or legislation or both.  It follows that a court of law cannot arrogate itself of jurisdiction that it does not possess.  Neither can the parties vest jurisdiction in a court  or tribunal.  Not even by consent of parties.

47. The locus  classicus on  jurisdiction  of the court  is the  Owners  of Motor Vessels “Lilian S” vs  Caltex Oil (K) Ltd [1989] KLR 1653 (CA)where  the  Court  of Appeal stated  thus:

“Jurisdiction is everything.  Without it, a court has no power to make one more step.  Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence.  A court of law down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

48. Emukule J ( as he then was) in John Kipngeno Koech & 2 Others vs Nakuru County Assembly & 5 Others (2013) e KLRstated thus  on jurisdiction, and  I concur:

“Jurisdiction is the practical authority granted to a formally constituted legal body to deal with and make pronouncements on legal matters and by implication to administer justice within a defined area of responsibility.  It is the scope, validity, legitimacy, or authority to preside or adjudicate upon a matter.”

48. In the instant case, the 5th and  6th respondents contend that  this court has no jurisdiction to hear and determine this matter because Section  75(1A) of the Election Act  provides that  with respect  to County Election Petitions, a question  as to the validity  of the election  of a County Assembly shall be heard  and  determined by the RM’s Court  designated  by the Chief Justice.  Further, that Under Section 75(4)  of the same  Act, an Appeal  under  sub-Section (1A) shall be to the High Court  on matters  of law only and shall be filed within 30 days of the decision of the  Magistrate’s Court and be heard and determined within six  months  from the date  of filing of the  Appeal.

50. Secondly, that this court being  a Judicial Review  court  has not been constituted  as an election court in accordance  with Rule  6   of the Elections ( Parliamentary and  County Assembly Elections Petitions) Rules 2017, and the judge presiding over the matter has not been gazetted  as required  by Rule  6(2) of the Rules.

51. On the part of the applicant  and her  proponents, this court  has supervisory powers over  the subordinate  courts  and can  quash  proceedings  and decision  of the RM’s  Court  where it is clear that  the  subordinate  court  violated  the applicant’s  right to be heard.

52. Further, that the provisions of Article 165(6) of the Constitution is superior to Section 75 of the Elections Act and any rules  made there under .

53. In Samuel Kamau (SK) Macharia vs KCB Ltd & another [2012] e KLR the Supreme Court stated:

“ A court’s jurisdiction flows  from either  the  Constitution, or  legislation or both.  Thus a court of law can only exercise jurisdiction as conferred on it by law.  It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it  by law- where the Constitution exhaustively provides for the  jurisdiction  of a court of law, it must operate within the constitutional  limits.  It cannot expand its jurisdiction   through judicial craft or innovation.

54. The jurisdiction of this court in Judicial Review matters is  derived  from the provisions  of Articles  23, 47 and  165(6)(7)  of  the Constitution, sections 8 and 9 of  the Law  Reform Act, Order  53 of the Civil Procedure  Rules  and  the Fair  Administrative  Action Act, 2015.

55. Under Article 165(6) of the Constitution, the High Court has supervisory jurisdiction  over the  subordinate  courts   and  over any person, body or authority exercising a judicial or quasi-judicial  function, but  not over a superior court. Under Article 165(7) for purposes of Clause(6), the High Court  may call for the records of any proceedings before any subordinate court or person, body or authority  referred to in Clause(6), and  may make any order or give any direction it considers  appropriate  to ensure  the fair  administration of justice. Article 23 gives this court power to enforce the bill of rights.

56. It is therefore not in dispute that this court has jurisdiction in judicial review matters in exercise of its supervisory jurisdiction over subordinate courts and tribunals and in granting judicial review remedies for violation of rights including the right to be heard and to a fair administrative action as stipulated in Articles 23 and 47 of the Constitution and the Fair Administrative action Act.

57. However, it is not in doubt that the jurisdiction of this court is not unlimited and that even where the court has jurisdiction, where there is an alternative effective remedy, then this court’s  jurisdiction would be limited   to the extent that a party must first exhaust that other remedy before resorting to judicial review. This is the spirit and letter of Article 159(2)(c)  of the Constitution and section 9 of the Fair Administrative Action Act, 2015.

58. In Samson Chembe Vuko V Nelson Kilumo & 2 Others [2016] e KLR, the Court of Appeal citing several  other decisions with approval among them:

a. Speaker  of the National Assembly vs Karume [2008] 1 KLR  425  where the  Court of Appeal  held inter alia:

“……..where  there is  a clear procedure  for the redress  of any particular  grievances s  prescribe  by the Constitution  or the Act  of Parliament, that  procedure  should be strictly  followed….”

b. In Mutanga Tea & Coffee Company Ltd Vs Shikara  Limited  & Another [2015] e KLR  the Court of Appeal reiterated the  foregoing as follows:

“…….This court has in the past emphasized  the need for aggrieved  parties  to strictly  follow  any procedures that are specifically   prescribed  for resolution of  particular  disputes (Speaker of the National Assembly V Karume)(supra), was  a 5(2)  (b)  applicant  for  stay of execution of an order of the  High Court  issued in Judicial  Review  proceedings rather than  in a petition  as required by the Constitution.  In granting the order, the court made the often –quoted statement that:

“[W] here there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.  ( see  also Kones  v Republic  & Another  exparte  Kimani  Wa Nyoike  & 4  Others  [2008] e KLR (ER) 296)

“It is readily apparent that in those cases the Court was speaking to issues of the correct procedure rather than of the correct forum for resolution of a dispute. However, we entertain no doubt in our minds that the reasoning of the Court must apply with equal force to require an aggrieved party, where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, to resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court. (Emphasis added).

The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The use of the word “including” leaves no doubt that Article (159(2)(c) is not a closed catalogue. To the extent that the Constitution requires these forms of dispute resolution mechanisms to be promoted, usurpation of their jurisdiction by the High Court would not be promoting, but rather, undermining a clear constitutional objective. A holistic and purposive reading of the Constitution would therefore entail construing the unlimited original jurisdiction conferred on the High Court by Article 165(3)(a) of the Constitution in a way that will accommodate the alternative dispute resolution mechanisms.(Emphasis added).

Secondly, such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner.…

…..We are therefore satisfied that the learned judge did not err by striking out the appellant’s suit and application which sought to invoke the original jurisdiction of the High Court in circumstances whereas the relevant statutes prescribed alternative dispute resolution mechanisms and afforded the appellant the right to access the High Court by way of appeal, which mechanisms he had refused to invoke. To hold otherwise would, in the circumstances of this appeal, be to defeat the constitutional objective behind Article 159(2)(c) and the very raison d’etre of the mechanisms provided under the two Acts……”(emphasis added).

59. From  the above   decisions  and others, it is clear  that as  recent  as 27th day of May  2016  when the Court of Appeal rendered  the decision on Samson  Chembe   Vuko V Nelson  Kilumo (supra), parties  ought not to invoke  the jurisdiction  of the High Court in Judicial Review  matters  where there is an alternative  dispute  resolution mechanism  established by an Act of Parliament and which is efficacious .

60. Article 177 of the Constitution provides for the composition of the County Assembly and how its members are elected and or nominated.  This is through-

a. Directly elected from the wards

b. Nominated based on special seats for  gender top up;

c. Those  from the marginalized  groups;

d. The Speaker;

61. Those in the (b) and (c) category are nominated by political  parties proportionate to the number of seats garnered in (a).  Those to fill special seats are determined after the election results have been declared.

62. After  the  declaration  of results, the IEBC  conducts  election for the  party top up lists  and  gazettes  the members  as  required  under the Act and those  nominated  to the County Assembly.

63. Any person aggrieved by the nomination which is duly gazetted  by IEBC can only challenge it through an Election Petition before a Resident  Magistrate’s Court.

64. In Moses  Mwicigi  & 14 Others  vs IEBC & 5 Others  [2016] e KLR, the Supreme Court  held, inter alia:

“ {106]  The gazette notice  in this case  signifies  the  completion of the “election  through  nomination” and  finalizes  the process of constituting  the  Assembly  in question.

[107] ] it is therefore clear that the  publication of the gazette notice  marks the end of the  mandate  of IEBC  regarding  the  nomination of party representatives and shifts  any consequential dispute  to the Elections  Courts.  The gazette notice also serves  to notify  the public  of those who have been “elected” to serve  as nominated  members of  a County Assembly.”

65. In Rose Wairimu Kamau and 3 Others vs IEBC CA  169/2013  the Court of Appeal  stated:

“…..in reaching the conclusion, we are alive to the fact that  once  nominees  to Parliament  and  County Assemblies under Articles  97( 1C) and  177(2)  respectively have been  gazetted, they are deemed elected members of Parliament and the County Assemblies and any challenge to their membership has  to be by way of election petitions under Article 105 of the Constitution or Part VIII of the Elections Act  as the case  may be.”

66. In this case, it is not in dispute that the applicant is listed as No. 2 on the gender top up party list for Amani National Congress Party in Tana River County Assembly.  It is also not disputed that the 1st respondent Hamida Yaroi Shek Nuri was the petitioner in Election Petition No. 23/2017 challenging the declaration by IEBC that Faith Tumaini Kombe was the nominated member of County Assembly of Tana River County.  The petitioner  also sought a declaration that the nomination of the said Faith Tumaini Kombe as a member of Tana River County Assembly was invalid, null and void as she  was  not a registered  voter  among other allegations.  The challenge was based on the party list for  Amani National Congress for Tana River County  which had  nominees namely:

i. Faith Tumaini Kombe

ii. Catherine Muthoni Mwaura

iii. Nuri  Hamida Yaroi Shek.

67. The Magistrate’s Elections Court upon hearing the  parties observed that the petitioner had adduced evidence that  the  4th respondent  herein Faith Tumaini Kombe and the other nominee for the Amani National Congress namely Catherine Muthoni Mwamra who is the applicant were not registered voters, as shown by electronic print outs  accompanied  by certificates.

68. The Election Court also observed that the 2nd nominee on the Party List one Catherine Muthoni Mwaura did not even raise any issue after the IEBC failed to gazette her name.

69. That is the context  in which the applicant  herein, Catherine Muthoni Mwamra, who was not  a party  to the Election Petition, and  who was not even gazetted  by IEBC  was mentioned  by the Election  Court.  No specific orders were issued or made against her.

70. But assuming that the Elections Court made some specific orders against the exparte applicant herein, the main question would be whether this court  would  have jurisdiction to invoke its  jurisdiction  under Articles  165  (6) and  (7)  or 47 or 23 of the Constitution  to protect  the  applicant’s  right to be heard  in an election petition which is already concluded and if the court were to do that, what would be the consequences of that election petition which is being challenged in the High Court Election Appeal Court?

71. This court does appreciate as was held in Onyango vs Attorney General [1986-1989] EA  456 that:

“I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.

Adecision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right.  If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”

72. And in Mbaraki & Others vs Macharia & Another [2005] 2 EA 206 at 210 the court stated;

“The right to be heard is a valued right.  It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

73.  As earlier stated, this court’s jurisdiction is not unlimited. The Constitution itself in Articles 162  and 165(5) limits this court’s jurisdiction and bars the court from hearing and determining disputes which are preserved for the Supreme Court and the Courts contemplated in Article 162(2). In addition, there are many statutes which limit jurisdiction of the High Court, including section 9 of the Fair Administrative Action Act, 2015.

74. Considering the question of jurisdiction of this court under Articles  47, 165(6)  vis a vis  section 75 of the Elections  Act, I would  agree that  the jurisdiction of this court  would  be limited where the matter under challenge involves elections and where the effect of the order sought would be to nullify an election.

75.  This is  so because  albeit Judicial Review  is now  a constitutional  remedy elevated  vide Articles  23 and 47  of the Constitution and therefore no longer a mere traditional prerogative writ, nonetheless, where such alleged violation relates to  elections, the law is clear that parties affected  must follow the procedure laid down in Election Statutes & Regulations.  The Supreme Court has pronounced itself with clarity on this same issue in the Moses Mwicigi case (supra) that:

“[119] To allow an electoral dispute  to be  transmitted  into a  petition for the vindication of  fundamental  rights  under Article 165(3) of the Constitution or through Judicial Review   proceedings, in our respectful opinion, carries the risk of opening  up a parallel  electoral dispute  resolution  regime.

Such an event would serve not only to complicate, but  ultimately, to defeat the sui generis character of electoral  dispute  resolution mechanisms, and  notwithstanding  the vital role of electoral dispute–settlement in the progressive  governance  set up of the current Constitution.

[120] in fortifying our pronouncement  in paragraph  119, we  revisit our earlier  decision, Communications  Commission  of Kenya  & 5 Others vs  Royal Media Services Ltd & 5  Others [2014] e KLR Sup at Pet No 14/2014 as consolidated with  Petition 14A of  2014, 14B/2014  and  14C of  2014  in which  this court considered interpretative theory, in respect  of Kenya’s Constitution, 2010. Had the interpretative approach we proposed in that decision been taken into account by the superior courts, and by the Magistrate’s courts, this may have provided a solution to the Court of Appeal’s task of interpretation. The proposed  theory  would have been of  service to the  Court of Appeal, by focusing that court’s attention upon the constitutional, statutory, and regulatory  texts  within the  history of Kenya’s Constitution making, besides other non-legal phenomena…”

76. In the Mwicigi [supra] case,  the 3rd  respondent  had filed a  Judicial Review  Application  No. 218/2013  Republic vs  IEBC & 17 Others  exparte  Lyelia Nyaguthi Githendu seeking an order of certiorari  to quash the decision of the IEBC nomination tribunal made on 7th June  2013 on grounds that it  does not  conform  to the provisions  of Article  90  (2) (b)  and  177(1)  (b)  and  (c )  of the Constitution. On 12th July 2013 the High Court declined jurisdiction and  dismissed  the matters, on grounds that:

“ the issues  raised were party  matters  that rest entirely  with the political party and  its members, and  that no error had been disclosed  to impugn the  committee’s  decision”

77. The Supreme Court clearly affirmed that :

“Only an Election Court has powers to disturb status quo in electoral matters. That  any aggrieved party would have to initiate the process  of ventilating  grievances  by way of an election  petition, in accordance with Section 75 of the Elections Act and that proceedings in the nature of Constitutional Petitions or Judicial Review would have the effect of the court assuming  jurisdiction  which it  did not have.

78. The Supreme Court at paragraph 111 of the same above Mwicigi case also noted that the order of certiorari issued by the Court of Appeal had the effect of annulling the appointment of the applicants as TNA nominated member  of Nyandarua  County Assembly.

79. In the instant case, in my humble  view, and  in line with the  above Supreme Court decision, the orders of certiorari as sought vide the leave application herein if issued  will have the effect  of annulling  the decision of the Election Court which  annulled  the  nomination of the 3rd respondent and thereby reinstating   her.  That is the role and functions of an appellate court in an  election  appeal matter  not of  a Judicial Review court.

80. The Election Court is recognized as the judiciary’s forum of resolution of electoral disputes.  “Election Court” is  defined  in Elections  Act as:

“The Supreme Court in exercise of jurisdiction conferred by Article 163(5)(a)or the High Court in exercise of the jurisdiction conferred upon it by Article 163(3) of the Constitution and  the Resident  Magistrate’s Court  as designated  by the Chief Justice  in accordance  with Section  75  of the Act.”

81. I totally agree that to grant leave in this matter to apply is to assume jurisdiction to preside over an appeal against the decision of the Election Court  (CM’s) Court which decision is  already being challenged  by the petitioner before the High Court election Court duly gazetted to hear and determine the appeal. This court is not an election court. It cannot hear and determine disputes arising from election court [subordinate court].

82. Furthermore, I see no reason why the petitioner in the Appeal did not seek for stay in the Election Appeal case and has instead  put up a spirited   fight  in these proceedings through her counsel Mr Mukele who took up a dual role of arguing the application on behalf of his client and the exparte applicant for an order of stay.

83. This is in my view, is forum shopping by the petitioner, to find a soft landing site. This court would be interfering with jurisdiction of a court of competent jurisdiction if it allowed parallel proceedings to take place and in a way  usurp  powers of the Elections Appeals  Court.

84. Therefore, as the issues to do with the right to be  heard in  proceedings are pure points of law  being ventilated  in the Elections Appeals  Court  and as  this court’s  jurisdiction  is clearly  ousted by section  75 of the Election  Act   as  interpreted  by the Supreme Court  in the Mwicigi & Others [supra] case, I find and hold that  to allow this matter to go on is to determine who becomes  the   County Assembly nominee for Amani National Congress Party for Tana River County Assembly, according to the party list, an issue which the Elections Appeal Court is competently seized of. Accordingly, I find and hold that this court is divested of jurisdiction to hear and determine  this matter in  its entirety.

85. Even assuming that this court had jurisdiction to hear and determine the matter, the respondents opposing the application for leave and stay are clear that the applicant’s application is an abuse of the court process and that it does not raise any prima facie arguable case for consideration at the substantive stage if leave is granted.

86. Indeed, the court at the leave stage is called upon to establish whether the applicant’s intended application raises any prima facie arguable case for indepth investigation at the substantive stage.

87. I have  carefully considered the application  and the responses.  Other than the issue of jurisdiction of the court which I have already disposed off, I note that the context in which the applicant’s name featured in the judgment of Election Petition 23/2017 was not in a manner as to affect her rights or interests.  She  was mentioned in evidence  by the Petitioners as one  of the persons  on the Amani National Congress  party list  who  was  not a registered  voter.  The Elections Court Magistrate  also observed  that the applicant   had not  even raised any issue for  not being gazetted by IEBC.

88. There  was nonetheless no determination  made against the applicant  in the judgment  to warrant  these proceedings claiming that the applicant was not accorded a hearing.  There are  many players  in election  petitions  and it  does not  follow that  every time  one’s  name pops  up in the course  of such proceedings then they  must be  dragged into the proceedings  to be given  an opportunity  to be heard.

89. The 3rd respondent in that petition, from the judgment attached, is the one who raised serious  issues  against the Amani National Congress  including  providing  a Party List of persons  allegedly  not registered  as voters.

90. The applicant was not a party in those  proceedings  yes but there is no reason why she did not apply  to be enjoined  therein.  She cannot feign ignorance of those proceedings which were published.  It is not true that publication of petitions  is a mere administrative  act in line with set timelines.  The publication informs all persons who may wish to be enjoined in the petition to join.  The applicant herein sat on the fence and waited for her name to be mentioned in the proceedings then she popped up with these  Judicial  Review proceedings .

91. The applicant claims  that she cannot  as a non  party to the appeal, adduce new evidence and that if this court  issues  certiorari then the appeal filed  by the petitioner  against the decision in the  Election Petition 23/2017 will be  spent. On that  note alone, it  becomes  crystal clear to this court  that the applicant who was not affected by the judgment of the  CM’s court is seeking to appeal through these Judicial Review  proceedings  on behalf of the petitioner/appellant in the pending appeal.  I say so for  reasons  that  the Memorandum  of Appeal  filed on 24th January  2018 vide Election Appeal No. 5/2018 and dated 24th January  2018  by Amani National Congress & Faith  Tumaini Kombe at grounds 4:  That the learned  trial magistrate erred in law  by issuing  adverse  orders  against the  second  nominee who was not a party to the proceedings  5.  That the  learned trial  magistrate erred in law by  condemning  the  second nominee  without  according  her a fair hearing

92. Therefore, the question of whether or not the applicant  herein  was  accorded  a hearing  prior to  the  decisions being   made by  the  Election Court being  subject  of an appeal, it matters not, in my view, that  she is not  a party  to that appeal, as she has not demonstrated  how she  has been  affected or prejudiced  by the judgment  of the Election Court  which as  I have  stated, never made any specific  orders against  her, other than making  reference  to her  in line with the evidence adduced  by the petitioner  therein.

93. It is therefore not  justifiable  for  the  applicant  to claim that  she cannot adduce new  evidence  on appeal  and that  the appeal  is only  on a point  of law. A complaint   that a person  who  was not  a party to the Election Court proceedings was nonetheless condemned by the court unheard is a pure point of law which can adequately be canvassed  by the Election  Appeals Court  since that issue is already before that court, and therefore,  separate Judicial  Review  proceedings cannot resolve the issue without setting side election court proceedings affecting election of a different person altogether.

94. These proceedings, in my humble view, seek to vary or set  aside the judgment  of the Elections Court  which judgment has already been appealed against in accordance  with the provisions  of the  Elections  Act  and  Rules.  This court is not an appellate court and cannot review election petition proceedings.

95. It is for that reason that  Section 9(2)  of the Fair  Administrative Action Act  2015   stipulates that where  there is an  alternative  remedy  by way of appeal or internal review, this court  is barred from hearing and determining Judicial Review  proceedings. Indeed, to conduct parallel proceedings by the courts of concurrent jurisdiction would embarrass the court as similar issues are raised in both courts for determination.

96. The applicant has no prima facie arguable  case for ventilation at the substantive stage. In the end, the notice of motion dated 26th January, 2018 be and is hereby dismissed.

97. I order that each party shall bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 2nd March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Ngome h/b for Mr Monda for the applicant

Mr Mokua for the 1st Respondent also h/b for Miss Mumbi for 2nd Respondent and Mr Kubai for 6th Respondents

Miss Daido for the 5th Respondent.

N/A for the 3rd Respondent

CA:Kombo