Ngugi & 2 others v Sudi; Ethics & Anti-Corruption Commission & 5 others (Interested Parties) [2022] KEHC 13856 (KLR)

Ngugi & 2 others v Sudi; Ethics & Anti-Corruption Commission & 5 others (Interested Parties) (Petition 268 of 2017) [2022] KEHC 13856 (KLR) (Constitutional and Human Rights) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13856 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 268 of 2017

M Thande, J

October 13, 2022

Between

Dan Njuguna Ngugi

1st Petitioner

Paul Kipkemboi Ng’Isirei

2nd Petitioner

Joseph Kipchumba Kitur

3rd Petitioner

and

Hon.Oscar Sudi

Respondent

and

Ethics & Anti-Corruption Commission

Interested Party

Director Ofpublic Prosecutions

Interested Party

Highway Secondary School

Interested Party

Kenya National Examinations Council

Interested Party

Independent Electoral & Boundaries Commission

Interested Party

Jubilee Party

Interested Party

Judgment

1. The petition dated May 31, 2017 was filed under Articles 3, 10, 22, 23, 73, 75 and 80 of theConstitution for the alleged contravention of sections 29 and 30 of the Leadership and Integrity Act No 19 of 2012. Accordingly the petition seeks the following orders:a.A declaration that the respondent fraudulently obtained academic papers being a KCSE school leaving Certificate and KCSE Results Certificate from the 3rd interested party and 4th interested party.b.A declaration that the respondent has failed to comply with and /or breached the provisions of Chapter Six of theConstitution and Section 30 of the Leadership and Integrity Act and hence he is unfit to hold public office.c.A permanent injunction barring the respondent from contesting in the General Elections of August 8, 2017 as the 6th interested party’s candidate or as an independent candidate for the position of Member of Parliament for Kapseret Constituency, Uasin Gish County.d.A permanent injunction barring the respondent from holding any public office.e.Costs of the petition.

The Petitioners’ case 2. This petition is supported by the 1st petitioner’s affidavit sworn on May 31, 2017. He avers that the respondent as a public officer violated the provisions of sections 29 and 30 of the Leadership and Integrity Act No 19 of 2012. He is alleged to have issued falsified records of his academic qualifications, to the 5th interested party. This he did as he vied for the position, of member of National Assembly in the 2013 general elections, by submitting to the 5th interested party a KCSE school leaving certificate, and KCSE Certificate and Diploma in Business Management certificate allegedly issued by the 3rd & 4th respondents the Kenya Institute of Management respectively.

3. He averred that owing to these allegations, the 1st interested party instigated an investigation where the respondent recorded statements. In the statements he claimed to have attended Tuopngetuny Primary School from 1995 to 1998; Highway Secondary School from 2004 – 2005 from where he sat for his KCSE examinations. Afterwards he joined the Kenya Institute of Management where he studied Business Management and graduated in October 2007, with a Diploma.

4. It is stated that the 1st interested party carried out investigations in respect of the authenticity of the respondent’s academic documents and prepared a report. The report recommended the preference of criminal charges against him by the 2nd interested party. This was done and at the time of filing this petition there was a criminal case on going at Milimani Chief Magistrates Anti-Corruption Court.

5. In view of this, the petitioners’ averred that although Article 38(3)(c) of theConstitution entitles the respondent to vie for the said office, this right may be limited as per the dictates of Article 25 of theConstitution. It was deponed that the petition was filed to protect the residents of Kapseret Constituency from being represented by a person who may be found criminally culpable of forgery and hence unfit to hold public office.

The respondent’s case 6. The respondent filed preliminary objection dated March 7, 2018 to the petitioner’s application dated May 31, 2017 and a replying affidavit to the petition sworn by himself on May 27, 2019. He raised the following grounds in the preliminary objection:i.That the said Application and the entire petition have been overtaken by events.ii.That the issues raised are the same as those raised in another competent court being Nairobi ACC No 14 of 2017. iii.The indolent do not find favour in a Court of equity and discretion.iv.There is lack of good faith and seriousness.

7. In the replying affidavit, he reiterated that the petition had been overtaken by events and deposed that the supporting affidavit by the 1st petitioner dated May 31, 2017 from paragraph 4 to 20 does not disclose the source of his facts and it was prejudicial to him. Further that the petition is scandalous, frivolous and vexatious and a calculated conspiracy with his opponents who were desirous of running for election in the year 2017 at Kapseret constituency.

8. He deposed that the 2nd and 3rd petitioners withdrew from the petition proceedings on May 7, 2018 leaving only the 1st petitioner. He wondered what interest he had or what his personal intentions in the case were. He averred that the said petitioner was a stranger and had not demonstrated whether he was a voter at Kapseret constituency or under what locus he was bringing the petition and whose interest and justice were being infringed.

9. He averred that he was vetted and also subjected to the EACC interrogation and the 5th interested party’s scrutiny during the nominations and was subsequently allowed by the IEBC to vie. In this way, he argued that it beat logic that the petitioners now support the petition which has no merit. He went on to aver that the only charge he was facing was in the Anti-Corruption Court which had not been finalized and he had also challenged the said charges in the High Court.

10. It was a wonder to him, how the petitioners had been able to obtain the annexed documents which were not accessible to anyone unless the same had been released out of malice, bad motive and intentions. The said documents had not been admitted as exhibits yet. He averred that the fact that he was facing anti-corruption charges was not an integrity issue per se unless and until he was found culpable or guilty of the said offences. In any case, he would still have the right of appeal and / or exhausting all avenues available in law before being held guilty.

11. He deposed that the petition was brought in bad faith and urged the Court to issue an order for the petitioners to be availed for purposes of cross- examination on the averments made. He urged that the petition be dismissed.

The 1st Interested Party’s Case 12. The 1st interested party filed its replying affidavit dated September 13, 2017 sworn by Derrick Kaisha Jumba, its investigator. He averred that the 1st interested party had received an anonymous complaint stating that the respondent had submitted a self-declaration form to the 5th interested party containing false information on his academic qualifications. The 1st interested party commenced investigations into the allegations in line with its mandate under Section 4(2) of the Leadership and Integrity Act.

13. He deponed that at the conclusion of the investigations, the 1st interested party forwarded its report to the 2nd interested party in accordance with Section 35 of the Anti-Corruption and Economic Crimes Act. It recommended that the respondent be charged with;i.Forgery contrary to Section 349 of the Penal Code.j.Uttering false documents contrary to Section 353 of the Penal Code.k.Providing false information contrary to Section 46(1) (d) as read with Section 46(2) of the Leadership and Integrity Act.l.Making a false statutory declaration contrary to Section 11 of the Oaths and Statutory Declarations Act.

14. It is noted that the 2nd interested party acted upon the recommendations and arraigned the respondent before the Chief Magistrate’s Court in Nairobi under Anti-Corruption Case No 14 of 2016. In response it is noted that the respondent filed Constitutional Petition No 11 of 2017 arguing that the 1st and 2nd interested party had violated his constitutional rights by instituting the charges against him. The Court heard the matter and dismissed the petition in its judgement dated July 27, 2017.

15. In conclusion he deponed that the respondent’s disingenuousness in his academic qualifications demonstrated his lack of personal integrity. He was therefore unsuitable to hold a state office as he had failed to meet the requirements of Article 73(2) (a) of theConstitution.

The 4th interested party’s case 16. The 4th interested party filed a replying affidavit by Mercy Gathigia Karogo sworn on July 17, 2017. She deposed that on September 23, 2015, the 4th interested party received a request from the 1st interested party for confirmation of candidacy and academic results of the respondent candidate No 401006/081(2006).

17. She deposed that following the verification process, the 4th interested party informed the 1st interested party as follows;a.The respondent did not register nor sit for the year 2006 KCSE examination at Highway School under number 401006081. b.The Code 401006 belonged to Parklands Secondary School during the 2006 KCSE examination. The High Way Secondary School Code in 2006 KCSE examination was 401005. Further the name of the school was Highway Secondary School and Not Highway High School as indicated in the copy of the certificate submitted for verification.c.The respondent’s name does not appear in the year 2006 KCSE examination database in either Parklands Secondary School code 401006 or Highway secondary School code 401005.

18. The 2nd, 3rd, 5th and 6th interested parties did not participate in this suit at all.

The parties’ submissions The 1st petitioner’s submissions 19. The 1st petitioner through the firm of Kisilu, Wandati and Company Advocates filed written submissions dated November 13, 2018 and a list of authorities dated December 1, 2021 in relation to the respondent’s notice of preliminary objection dated March 7, 2018 and the petition.

20. On the preliminary objection, Counsel submitted that the same did not raise pure points of law as held in the case of Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd [1969)EA 696. According to Counsel ground number 2 was founded on a contested fact that is, whether or not the issues for determination pending before Nairobi Anti-Corruption Case No 14 of 2017 are the same as the issues for determination in the instant petition.

21. Moreover, it was noted that the cited suit was a criminal case in which the petitioners were not parties to. It was stated that the criminal case sought to establish the criminal culpability of the respondent in relation to the allegations of forgery and falsification of his academic certificates. Counsel stressed that the criminal case matter’s issues for determination were not those raised in the instant suit which is whether the respondent had met the leadership and integrity test in theConstitution.

22. Counsel went further to submit that the fact that the 3rd and 4th interested parties had disowned the academic documentations for the respondent meant that the burden had shifted on the respondent to prove otherwise in accordance with Section 109 of the Evidence Act. In view of this, Counsel argued that it was pointless for this Court to await for the outcome in respondent’s criminal case as the 3rd and 4th interested parties affidavits had shown that the respondent had not met the leadership and integrity test in theConstitution.

23. In support reliance was placed on the case of Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR where it was held that Kenyans were very clear in their intentions when they entrenched Chapter six and Article 73 in theConstitution. They were singularly aware that theConstitution has other values such as the presumption of innocence until one is proved guilty. Yet, Kenyans were singularly desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern them or hold public office. They intended that Chapter six and Article 73 be enforced in the spirit in which they were included in theConstitution. Additionally reliance was placed on the case of Luka Angaiya Lubwayo & another v Gerald Otieno Kajwang & another [2013] eKLR,

24. For the reasons set out above Counsel submitted that the respondent’s preliminary objection was defective and so in the absence of an appropriate response to the petition by the respondent, the same was unopposed. Accordingly the Court was urged allow the petition as prayed.

The respondent’s submissions 25. The respondent filed submissions dated March 8, 2022 through the firm of H & K Law Advocates. Counsel raised the following issues;

i.Whether the respondent’s preliminary objection should be upheld.ii.Whether the respondent fraudulently obtained academic papers being KCSE School Leaving Certificate from the 3rd and 4th interested party.iii.Whether the respondent has failed to comply with the provisions of Chapter Six of theConstitution of Kenya, 2010. 26. On the first issue, and while relying on Daniel Kaminja & 3 others (suing as Westland Environmental caretaker Group) v County Government of Nairobi [2019] eKLR, counsel maintained that the petition has been overtaken by events as it was seeking to halt an event that has already taken place. The said petition was in regard to contesting in the general elections of 8th August 2017 and there was no evidence in court that the respondent was seeking to be elected in any other elections.

27. He further submitted that the issues raised in the petition are similar to those in Milimani Nairobi ACC No 14 of 2017 which are pending before a competent court; hence sub judice. To buttress this argument, he relied on Section 6 of the Civil Procedure Act Cap 21 and the cases ofi.Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR;j.Kampala High Court Civil Suit No 450 of 1993- Nyanza Garage vs Attorney General; among others.

28. On the import of this Court’s decision on the criminal case, and relying on the case of Supreme Court of India in KG Premshanker v Inspector of Police and another (2002); and Section 44 and 45 of the Evidence Act, he submitted that there is a real possibility that the decision of this Court whichever way it holds, may be admissible as evidence in the criminal court. He qualifies the instant petition as a fishing expedition for material questions of evidence on issues currently before the court in the criminal matter. The respondent would therefore be prejudiced, he argues.

29. On the second issue, counsel submitted that the same is not a justiciable issue before this court. There is no factual or legal dispute, pending or concluded, between the IEBC and the respondent on his eligibility to contest in an election on account of the instant accusations. He urges that the petition is based on speculative future contingencies set to be subjected to evidentiary threshold at the criminal court as opposed to actual facts.

30. Counsel noted that the prayers sought in the petition are meant to request this court to make a declaration on allegations of fraud which ought to be made within the confines of a criminal prosecution. He relied on Janet Ndago Ekumbo Mbete v Independent Electoral and Boundaries Commission & 2 others [2013] eKLR. Adding that so far, no court of competent jurisdiction had found the respondent guilty of the alleged criminal offence. Article 50(2) (a) of theConstitution guarantees his right to be presumed innocent until proven guilty while Article 25(c) provides that the right to fair trial is unlimited. Hence the petition lacks proof and contains general unsubstantiated allegations and non- justiciable issues, against the respondent.

31. On the third issue, counsel urged the court to take judicial notice of the respondent’s compliance with the leadership and integrity code. That this question should first be handled by the EACC and / or the IEBC. He relied on International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR and urged the court to find and hold as held in that case.

The 1st interested party’s submission’s 32. The 1st interested party through its Counsel, Jackie Kibogy filed written submissions dated May 15, 2018. She submitted the issues for determination to be:

i.Whether the petition had been overtaken by events.ii.Whether the issues raised in the petition were substantially similar or in issue in the Chief Magistrate’s Anti-Corruption Court (Nairobi) Case no ACC No 14 of 2017. iii.Whether the four points of objection raised by the respondent are preliminary objections. 33. On the first issue, Counsel submitted that prayer (c) in the petition had been overtaken by events as the general elections had already taken place. It was noted however that prayers (a) (b) (d) and (e) of the petition were justiciable issues for determination. In Counsel’s view the issue of breach of the provisions of Chapter six was in issue and so was a subject for adjudication by this Court as it was entrenched by the people of Kenya in their quest for ethics and integrity in leadership.

34. In support she relied on the case of Ahmed Abdulahi Mohammed & another v Mohammed Abdi Mahamud & 2 others (2017) eKLR where the Court acknowledged that the issue of integrity in leadership and accountability in public affairs is one that has bedeviled this Country for a very long time. It is for this reason that in their wisdom Kenyans entrenched the issue of integrity in their 2010 Constitution. Counsel noted further that this requirement had also been expressed in Article 10 (2) (c) of theConstitution with Article 73(2) (a) stipulating the guiding principles. As such these provisions were binding on all State Officers irrespective of the manner in which a person holds the State Office. In view of this Counsel argued that this matter was a constitutional issue.

35. On the second issue, she submitted that based on the 4th respondent’s affidavit that the academic certification was not genuine, a prima facie case had been established that the respondent had violated Chapter six of theConstitution on the integrity required of a State Officer. She noted that one of the eligibility criteria for election as a member of Parliament is under Article 99(1) (b) of theConstitution, and section 13 (c) & (g) of the Leadership and Integrity Act.

36. Counsel also submitted that the petition was properly before this Court by virtue of Articles 22 of theConstitution. In support reliance was placed on the case of Armstrong Mwandoo Kiwoi & Another v Granton Graham Samboja & 7 others Election Petition No.1 of 2017 (2017) eKLR where the Court in answering a similar question held that the proper determination of whether the 1st respondent had the requisite academic qualifications as required under Article 99 of theConstitution could be made in the pending constitutional petition. Similar reliance was placed on the cases of Godfrey Mwaki Kimathi & 2 others v Jubileee Alliance Party & 3 others (2015) eKLR and Luka Angaiya Lubwayo (supra)

37. Speaking to the criminal culpability of the respondent in the criminal proceedings before the Anti-corruption Court, Counsel submitted that the question of forgery and uttering of false documents was within the purview of that Court while the issue of integrity was within this Court’s jurisdiction. She in effect argued that the threshold for integrity to hold public office was not based on a conviction but the respondent’s misrepresentation of information to a public entity and the public. In support of this view counsel reminded this Court that the law envisages concurrent criminal and civil proceedings under Section 193A of the Criminal Procedure Code.

38. On the final issue, Counsel submitted that prayers (a) (b) (d) and (e) raise the issue of the respondent’s eligibility as a state officer to hold public office which is a factual issue. Taking this into consideration she stated that the preliminary objection fell short of the threshold set out in the case of Mukisa Biscuit Company (supra). Similar reliance was placed on the cases of Oraro v Mbajja (2005)eKLR, Hezron M Nyachiya v Tanzania Union of Industrial and Commercial Workers & another Civil Appeal No 79 of 2001 and Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others (2015) eKLR.

The 4th interested party submissions 39. The 4th interested party filed submissions dated December 14, 2021 through the office of the Attorney General. Counsel reiterated the contents of their replying affidavit concluding that the certificate presented to it for verification did not originate from them. That they have no such record of a person by the name Sudi Kipchumba Oscar in their database regarding the Kenya National Secondary Examinations sat for by candidates of the year 2006.

Analysis and determination 40. It will be prudent to address a number of matters before outlining the issues this Court deems fit for determination. The respondent in his replying affidavit dated May 27, 2019 raised a number of issues which revolved around the following;i.The locus standi of the petitioners,ii.The question on how the petitioner accessed the documents;iii.Cross examination of the petitioner. It is noted that this Court made a pronouncement on these issues in its ruling dated December 17, 2020. That being the positon the said issues will not be the subject of this judgment.

41. Having carefully considered the parties’ pleadings and submissions case law cited and the law I find the following issues falling for determination: -i.Whether the Respondent’s Notice of Preliminary Objection raises points of law.ii.Whether the petition has been overtaken by events.iii.Whether this matter offends the doctrine of sub judice.iv.Whether this petition offends the principle of justiciability owing to the doctrine of ripeness.

Whether the respondent’s notice of preliminary objection raises points of law 42. The petitioners and the 1st interested party objected to the respondent’s preliminary objection owing to the fact that it was based on contested facts which are not points of law. According to the petitioners the fact was whether or not the issues for determination pending before Nairobi Anti-Corruption Case No 14 of 2017 are the same as the issues for determination in the instant petition. While the 1st interested party argued that the prayers sought save for (c) concerned the respondent’s eligibility as a state officer which is a factual issue.

43. As submitted by the parties the definition of what constitutes a preliminary objection was set out by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co Ltd (Supra). Similarly, the Court in the case of Oraro vs Mbaja (supra) offers significant insight as follows:'A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop. The principle is abundantly clear. A 'preliminary objection' correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.'

44. The preliminary objection (PO) in this matter as outlined in the respondent’s PO revolves around the current existence of the undetermined Anti-Corruption suit which is Nairobi Chief Magistrate’s ACC No 14 of 2016 which in his argument raises the same issues. This evidently is a legal principle based on the doctrine of sub judice with regard to the said issues.

45. Evidently, the issue of sub judice does not concern a factual aspect calling for proof by the parties. Considering this it is apparent that the respondent’s preliminary objection raises a point of law. What remains for this Court to determine however is whether the preliminary objection as raised by the respondent is merited. I move to determine the issue.

Whether this petition has been overtaken by events 46. The respondent in making his case on this point argued that the instant petition had been overtaken by events. This is because it seeks to halt an event that has already taken place being the 2017 general elections. The 1st interested party opposed this argument stating that the only prayer that had been rendered moot in the petition was prayer (c). The 1st interested party otherwise submitted that the other prayers were live and in need of a determination by this Court.

47. The term moot in a Court of law refers to a matter that has been brought to Court ‘too late’. In essence a case is moot if it no longer presents an existing or live controversy or the prejudice, or threat of prejudice, to a party. The South African Court in the case of National Coalition for Gay and Lesbian Equality & others vs. Minister of Home Affairs & others 2000 (2) SA 1 (CC), 2000 (1) BCLR 39 (CC) noted that part of what underlies this doctrine is the notion that courts should avoid giving advisory opinions on abstract propositions of law.

48. Similarly, the Court in the South African case of Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Limited and Others [2020] ZACC 5 discussing this doctrine stated as follows:'(47)Mootness is when a matter 'no longer presents an existing or live controversy'.36 The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and that courts should avoid deciding matters that are 'abstract, academic or hypothetical'.(48)This Court has held that it is axiomatic that 'mootness is not an absolute bar to the justiciability of an issue [and that this] Court may entertain an appeal, even if moot, where the interests of justice so require'. This Court 'has discretionary power to entertain even admittedly moot issues'.[50]Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter.These include:i.Whether any order which it may make will have some practical effect either on the parties or on others;ii.The nature and extent of the practical effect that any possible order might have;iii.The importance of the issue;iv.The complexity of the issue;v.The fullness or otherwise of the arguments advanced; andvi.Resolving the disputes between different courts.'

49. From the above analysis and the facts of this case, it is obvious that the August 8, 2017 elections already took place and to that extent prayer 'c' is moot. A reading of the other prayers makes it apparent that there is a live controversy with reference to the respondent’s eligibility under Chapter six of theConstitution with regard to his academic qualifications that are alleged to have been fraudulently obtained and forged. The respondent in this matter did not in any way show whether these issues had been addressed by another Court for this Court to refrain from addressing them. This means that any orders that would be issued by this Court would indeed have practical effect on the respondent’s standing as a leader.

50. It is further noted that the doctrine of mootness is not absolute. Where the issues raised present a compelling public issue, the Court must determine the question in controversy. The issues raised in the instant petition not only affect the parties herein but the general public as concerns the eligibility of leaders based on the dictates of Chapter six of theConstitution. Accordingly I humbly reject the respondent’s argument that the whole petition is moot. I say so because of the unresolved controversies that have an important bearing on public interest.

Whether this matter offends the doctrine of sub judice 51. In his preliminary objection, the respondent raised a point of law stating that the issues raised are the same as those raised in Nairobi Chief Magistrate’s ACC No 14 of 2017. The petitioners argued that the cited suit is a criminal case in which they are not parties and that the said case sought to establish the criminal culpability of the respondent in relation to allegations of forgery and falsification of his academic certificates. Counsel stressed that the issues for determination are not those raised in the instant suit which is whether the respondent had met the leadership and integrity test in theConstitution. That 3rd and 4th respondents having disowned the academic documentations, it is pointless for this court to await the outcome in the respondent’s criminal case.

52. The 1st interested party submitted that the issue of criminal culpability of the respondent in the criminal proceedings before the Anti - Corruption Court and the question of forgery and uttering false documents was within the purview of that court while the issue of integrity was within this court’s jurisdiction.

53. Section 6 of the Civil Procedure Act, Cap 21 Laws of Kenya provides for when a matter can be declared as offending the doctrine of sub judice. It provides;Stay of suit''No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.Explanation.— The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court.” 54. The rationale for the doctrine of sub judice was discussed inDavid Ndii & others v Attorney General & others [2021] eKLR as follows:'508. The rationale behind this provision is that it is vexatious and oppressive for a claimant to sue concurrently in two Courts. Where there are two Courts faced with substantially the same question or issue, that question or issue should be determined in only one of those Courts and the Court will, if necessary, stay one of the claims.'

55. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR had this to say in regard to sub judice:-'(67)The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: 'Before the Court or Judge for determination.' The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.'Also see Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR.

56. This court has also pronounced itself recently with regard to sub judice inAuto Terminal Japan Limited v Directorate of Criminal Investigations & another [2021] eKLR that: -'Basically, for the doctrine of sub judice to stand in the instant suit, the four principles examined above must be present. That is, there must exist two or more suits filed consecutively, the matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits must be the same and they must be litigating under the same title and the suits must be pending in the same or any other court having jurisdiction in Kenya.'

57. I have looked at the Anti- Corruption case, and find that the only common party is the respondent. The issues raised therein are on forgery, uttering false documents, providing false information and making a false statutory declaration. The issues raised herein though different have their foundation on the criminal charges facing the respondent before the Anti-Corruption Court.

58. This court cannot determine the issue whether the respondent fraudulently obtained the academic papers being a KCSE school leaving certificate and KCSE Results Certificate from the 3rd and 4th interested parties based on the evidence herein alone. This is an issue that needs to be investigated heard by a competent court and if found culpable to be placed on his defence for the court to determine whether it is true or not. Otherwise, concluding this case as urged by the petitioners would be tantamount to denying the respondent his right to a fair trial which cannot be limited as provided for under Article 25 of theConstitution.

Whether the petition offends the principle of justiciability owing to the doctrine of ripeness 59. This petition is basically asking this court to declare that the respondent has failed to comply with and / or breached the provisions of Chapter six of theConstitution and section 30 of the Leadership and Integrity Act. The petitioners submitted that the respondent did this by issuing his political party, the 5th interested party falsified records of his academic qualifications. Further that the fact that the 3rd and 4th interested parties had disowned the academic documentation for the respondent meant that the burden had shifted and that it was pointless to await the outcome in the respondent’s criminal case as the 3rd and 4th interested parties affidavits had shown that the respondent had not met the leadership and integrity test in theConstitution.

60. The respondent submitted that the fact that he was facing Anti- corruption charges was not no integrity issue per se unless and until he was found culpable or guilty of the said offences which in any case, he would have the right of appeal and or exhaust all avenues available in law before being held guilty.

61. The 1st interested party submitted that the issues raised in prayers (a) (b) (d) and (e) were justiciable issues for determination. He submitted that the issue of breach of the provisions of chapter six was an issue and so was the subject for adjudication by this Court as it was entrenched by the people of Kenya in their quest for ethics and integrity in leadership. Further that based on the 4th interested party’s response that the academic certification was not genuine, a prima facie case had been established that the respondent had violated chapter six of theConstitution. She submitted that the threshold for integrity to hold public office was not based on the conviction in the criminal case but the respondent’s misrepresentation of information to the public entity and the public.

62. In a 3-Judge bench of the High Court in Nairobi Constitutional Petition No 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020) eKLR, the Court while addressing the issue of justiciability stated as follows: -'96. The Black’s Law Dictionary, 9th Edition, Thomson Reuters Publishers at page 943-944 defines justiciability as follows:'Proper to be examined in courts of justice' or 'a question as may properly come before a tribunal for decision'97. A Court must satisfy itself that the case before it is not caught up by the bar of non-justiciability. The concept of non-justiciability is comprised of three doctrines: Firstly, the Political Question Doctrine; secondly, the Constitutional-Avoidance Doctrine; and, thirdly, the Ripeness Doctrine. The doctrines are crosscutting and closely intertwined. We shall however endeavour to as far as possible delimit the operation of each doctrine in isolation.107. Lastly is the Ripeness Doctrine. The doctrine focuses on the time when a dispute is presented for adjudication. The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made108. Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies.'

63. In Simon Kiprotich & 2 others v Principal Secretary, Ministry of Devolution and Planning & 4 others[2018] eKLR, the court stated:'53. I have considered the petition, responses, rival submissions and do find the issues raised by the petitioners are non-justiciable. Justiciability refers to the types of matters that the courts can adjudicate. To be justiciable, the court must not be offering advisory opinion, the petitioners must have standing and the issues must be ripe for determination.'

64. In Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No 453 of 2015 [2016] eKLR, Onguto J stated:'(27)Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases. The court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before court must be ripe, through a factual matrix for determination.

65. The issue of the integrity of the respondent emanates from his alleged falsifying of documents which is an issue that is being handled by the Anti-Corruption Court. Therefore, this court cannot determine whether the respondent has failed to comply with the provisions of chapter six unless and until, as rightly stated, the respondent is found culpable in the criminal case. In my view that issue is not ripe for determination. It is an issue that is pegged on the outcome of the criminal case whose outcome this Court has not been told.

66. Further as stated by the respondent the decision of this Court will bind the Chief Magistrate’s Anti-Corruption Court hence the respondent will be prejudiced. Assuming that this Court finds that the respondent has failed the dictates of Chapter 6 based on the allegations of falsified academic documents while the Anti-corruption Court finds him not culpable and acquits him on all those charges and vice versa what happens?

67. It is for the above reasons that I find that the petition herein was filed pre-maturely. It was not ripe for determination since the basis of their claim is founded on the criminal charges facing the respondent. Determining the issues herein at this time as sought by the petitioners would amount to a real injustice to the respondent. For that reason I shall not determine the real issues herein as they were filed prematurely.

68. From the foregoing and from the reasons set out herein I find the petition to lack merit and I strike it out with costs.Orders accordingly.

DATED AND SIGNED THIS 11TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDELIVERED AND SIGNED THIS 13TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.MUGURE THANDEJUDGE OF THE HIGH COURT