Godfrey Mugambi, Joseph Maore & Lilian Nkatha v Philip Abubakar Oluoch, Lucy Waithera Muhu, Jane Wambui, Independent Electoral & Boundaries Commission (IEBC), Kenya Patriot Party & Clerk to County Assembly [2017] KEHC 3105 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

PETITION NO 19 OF 2017

GODFREY MUGAMBI...............................................1ST PETITIONER

JOSEPH MAORE....................................................2ND PETITIONER

LILIAN NKATHA.......................................................3RD PETITIONER

VERSUS

PHILIP ABUBAKAR OLUOCH...............................1ST REPONDENT

LUCY WAITHERA MUHU....................................2ND RESPONDENT

JANE WAMBUI......................................................3RD RESPONDENT

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC).................4TH RESPONDENT

KENYA PATRIOT PARTY......................................5TH RESPONDENT

CLERK TO COUNTY ASSEMBLY.......................6TH RESPONDENT

RULING

1.     Before me is a Motion on Notice dated 5th September, 2017.  It       is brought under Articles 22 (1), 23, 38, 81, 91, 177 and 258     (1), (2) of the Constitution.  It seeks a prohibitory order       restraining the 1st, 2nd and 3rd Respondents from taking or     having the oath of office administered upon them by the 6th        Respondent or by any one whatsoever pursuant to Kenya         Gazette Vol. CXIX-No. 124 published on 28th August, 2017.

2.     The grounds upon which the application is brought is that the      4th Respondent has breached the Constitution by Gazetting        names of the 1st, 2nd and 3rd Respondents as nominees to the    County Assembly of Meru representing the Kenya Patriots       Party.  That the said three Respondents are residents of      elsewhere other than Meru County as follows:

(a)    1st Respondent is a resident of Gem Constituency and he                       vied for the seat of North Gem Ward under the Federal                   Party.

(b)    2nd Respondent is a voter of Dagoretti South                                   Constituency and vied for the seat of National Assembly                         for that Constituency..

(c)    3rd Respondent is a voter of Dagoretti North                                    Constituency.

3.     The Applicants allege that for reasons of the breach of the      Constitution and other statutory provisions of the law, their       rights are about to be breached. They therefore sought that      the prayers sought be granted.

4.     I have carefully considered the Affidavits on record and submissions of Mr. Kiogora, Learned Counsel for the      Applicants.  I have looked at the principal pleading in this         matter, the Petition dated 5th September, 2017.  The principal   prayer therein is to the effect that:-

“(a)   An order revoking the decision and/or nomination of the 1st, 2nd and 3rd Respondents respondent (sic) in the Meru County Assembly.”

5.     What the principal pleading seeks therefore is the nullification of the nomination of the 1st to 3rd Respondent as Members of the Meru County Assembly.  In the case of Moses Mwicigi & 14 Others v IEBC & 5 Others (2016) Eklr, the Supreme Court of Kenya held, inter alia, that:-

“… it is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC,  as an integral part of the election process.

(106)                The Gazette Notice in this case, signified the completion of the “election through nomination”, and finalizes the process of constituting the Assembly in question.  On the other hand, an “election by registered voters”, as was held in theJoho Case, is in principle, completed by the issuance of Form 38, which terminates the returning officer’s mandate, and shifts any issue as to the validity of results from the IEBC to the Election Court.

(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 Election 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.”

5.     The  foregoing  being  the case,  these proceedings  are   but   a challenge to the “election” of the 1st to 3rd Respondents.  A     question therefore arises as to which Court has jurisdiction to   adjudicate the dispute herein, that is, is it this Court or the      Election court which is yet to be constituted as per the law         provided?

6.     The other issue is, whether this Court can stop an elected or         nominated Member of the County Assembly from being sworn       in.  From the Supreme Court’s decision aforesaid, once a     person has been duly gazetted, as nominated, he is deemed      to be duly elected and the role of IEBC ends.  Unlike in the         case of a   President whereby the Constitution directs that a       person elected as such shall not be sworn in until any Petition         filed against him has been heard and determined, there is no        such provision in respect of a Governor, Senator, Member of   the National Assembly or     Member of the County Assembly.    The failure to have such a provision for the other positions,    save for that of a President, is for good reason.  That, the   National Assembly, Senate or County Assembly should be left        to operate and carry out its functions while any dispute     regarding its membership is being sorted out by the Election      Court.  The Election Court has been given timelines within      which to   resolve such disputes.  It is in the public interest   that the public continue to be represented in the Assemblies       pending resolution of the election disputes.

7.  Accordingly, I find the application to lack merit and the same is hereby dismissed.

It is so ordered.

DATED and DELIVERED at MERU this 6TH day of SEPTEMBER, 2017

A. MABEYA

JUDGE

05/09/2017