Republic v Electoral Commission of Kenya Ex- Parte Kimani Wa Nyoike & 3 others [2004] KEHC 2619 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION 129 OF 2003
BETWEEN
REPUBLIC ......................................................................... APPLICANT
AND
ELECTORAL COMMISSION OF KENYA .................. RESPONDENT
EX-PARTE KIMANI WA NYOIKE & 3 OTHERS
JUDGMENT
This is a judicial review matter initiated by Notice of Motion, dated 28th February, 2003 and filed on 3rd March, 2003. The application was brought under order LIII rules 1, 3 and 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act (cap 21), and sections 8 and 9 of the Law Reform Act (cap 26). The application has five prayers which may be set out here:
(a)that the Court be pleased to issue an order of certiorari,to remove into the Court and quash the order and/or decisions or proceedings taken by the Electoral Commission of Kenya on 14th and 17th January, 2003 together with all consequential orders and/or proceedings thereof when it refused to forward the second applicant’s name and particulars for appointment as the first applicant party’s nominated Member of Parliament to His Excellency the President of the Republic of Kenya, and instead wrongly forwarded the name of Kipkalya Kiprono Kones;
(b) that the Court do issue an order directing the respondent to forward the names and particulars of the second applicant, namely Kimani wa Nyoike, for appointment as Ford People’s nominated Member of Parliament to His Excellency the President of the Republic of Kenya;
(c) that the Court do issue an order of prohibition ordering the respondent to refrain from wrongly interpreting, or misinterpreting the Constitution, and in particular, to refrain from taking proceedings in support of the nomination of Kipkalya Kiprono Kones as the party’s nominee;
(d)that the Court do issue any such other order as it may deem just and equitable to grant, in the circumstances;
(e)that the costs of these proceedings be provided for.
Grounds in support of the application are set out, firstly, in a summary on the face of the Notice of Motion; secondly in the affidavit sworn by the second applicant, Kimani wa Nyoike on 12th February, 2003; and thirdly in the Statement of Facts made under order LIII rule 1(2) of the Civil Procedure Rules and duly signed by counsel for the applicants on 12th February, 2003 and verified by the second applicant by his Verifying Affidavit dated 12th February, 2003.
In the summarised grounds in support of the application, the applicants state as follows:
(i) On or about the 31st December, 2002 the respondent informed the first applicant that, by virtue of section 33 of the Constitution, it (the first applicant) was entitled to name one person for the respondent to forward for appointment as a nominated Member of Parliament by His Excellency the President.
(ii) By a letter dated 3rd January, 2003 the first applicant, acting through its National Executive Committee (NEC), informed the respondent that the first applicant had named and chosen the second applicant for appointment to Parliament for the one slot allocated to the first applicant.
(iii) On diverse dates between 14th and 17th January, 2003 the respondent was reported in the media as having forwarded for appointment to membership of Parliament the name of Kipkalya Kiprono Kones and rejected the name of the second applicant.
(iv) It was stated in the said media reports that the respondent’s decision had been based on article 6 of the Constitution of Ford People the first applicant; it was however not reported that the respondent had based its decision on: sections 1A and 33(1), (2) and (3) of the Constitution of the Republic of Kenya; nor that the respondent had been guided by Articles 11, 12, 17(b) and 18 of the Constitution of Ford People which provided that such a nomination decision should be made by Ford People’s NEC and not by Ford People’s party leader who had wrongly purported to nominate Kipkalya Kiprono Kones to fill the Party’s nominated seat in Parliament;
(v) The respondent took the decision against the interests of the applicants on its own, without hearing them at all;
(vi) The act of the respondent has caused division in the membership of Ford People the first applicant, and has undermined the operations of the applicants, by creating doubts about the appropriate organs of the Party to make such an important executive decision;
(vii) The action taken by the respondent is ultra vires its powers, for the respondent has erroneously made itself the selecting and appointing/nominating body for a person to be designated a nominated Member of Parliament.
A crucial source of evidence in support of the judicial review application is the affidavit of the second applicant, Kimani wa Nyoike, dated 12th February, 2003. In this long affidavit the second applicant makes his depositions, in substance as follows:
(i) that he is the National Chairman and a national officer of the Forum for the Restoration of Democracy for the people – Ford People - a duly registered political party;
(ii) that Ford People supported candidates in the Presidential, National Assembly and Civic elections held in Kenya on 27th December, 2002;
(iii) that following the General Elections of December, 2002 the Chairman of the Electoral Commission of Kenya (the respondent) published detailed information regarding the number of seats allocated to various political parties for the designation of a nominated Parliamentarian; and Ford People (the first applicant) was allocated one nominated seat.
(iv) that, on 3rd January, 2003 the Party Leader under the Ford People Constitution, Mr Simeon Nyachae, invited the second applicant to join him and the Party’s new MPs-elect for a discussion at his private office in Nairobi, and at the meeting Mr Nyachae requested those present to discuss the nomination of the Party’s nominated Member of Parliament; and at this meeting, the Party Leader raised objections to the prospect of such nomination being conducted by the NEC;
(v) that, the second applicant cautioned against the forum of the meeting being used for the purpose of determining the name to be forwarded for the appointment of one MP, on the following grounds –
• the gathering as then constituted had no mandate under the Party Constitution to take any executive decision on behalf of the Party;
• on that very day there was going to be a National Executive Committee meeting at the Party headquarters, and persons seeking nomination for the Party’s one seat in Parliament, were expected to have their names deliberated upon;
• the decision to present a party candidate for nomination should be taken by majority decision at a properly convened meeting of the NEC;
• the meeting called by the Party Leader was attended also by persons who were not officers of the Party; and no Party records were on that occasion available for verifying membership details;
(vi) that the second applicant’s views were rejected, and the Party Leader directed him to leave the meeting even before its agenda had been addressed to completion;
(vii) that the second applicant later learned that at the said meeting called by the Party Leader, some election was purportedly conducted and that the meeting had elected Mr Kipkalya Kiprono Kones as the Ford People candidate for appointment to the single nominated seat reserved for the Party under the provisions of the Constitution of the Republic of Kenya;
(viii) that, as previously scheduled, Ford People’s NEC met later in the day, at the Party Headquarters;
(ix) that, at the NEC meeting aforesaid, the name of Mr Kipkalya Kiprono Kones was not approved as the candidate for appointment to the Party’s nominated seat in Parliament, for the following reasons:
• Mr Kones was a new member of the Party, and he was not well known to party members in his capacity as a member;
• since recently joining the Party, Mr Kones had hardly worked for the Party; he was not an official of the Party; and his nomination as the candidate for the nominated parliamentary seat would scandalize the Party;
(x) that, at the said NEC meeting, there was discussion of the merits and demerits of those individuals seeking to be appointed to Parliament on the ticket of Ford People, and it was unanimously agreed that the second applicant be recommended to the Electoral Commission of Kenya, the respondent, for forwarding for the purpose of appointment to Parliament, the main consideration being that the second applicant was the most suited to the task of safeguarding the long-term interests of the Party; and thereafter the NEC forwarded the name of the second applicant to the respondent for further forwarding to His Excellency the President, for formal appointment and gazettement;
(xi) that, the second applicant later learned from the media that the name of the Hon Kipkalya Kiprono Kones had also been forwarded to the respondent for appointment to Parliament, under the Ford People Party ticket;
(xii) that, on the 14th and 15th of January, 2003, the Ford People officials learned with surprise from the media that the Electoral Commission of Kenya, that is the respondent, had without the courtesy of informing the applicants, undertaken their own interpretation of the Ford People Constitution and on the basis of their interpretations, they had dropped the name of the second Applicant but instead forwarded that of Mr Kipkalya Kiprono Kones, to His Excellency the President for formal appointment to Parliament for the one seat assigned to Ford People under the Constitution of Kenya;
(xiii) that the respondent had well known throughout and at all material times, that the first applicant, namely Ford People the Party, was entitled to nominate one person to take up the Party’s one nominated seat in the National Assembly and such designation or recommendation was to be done by the Party’s executive decision-making organ, namely the National Executive Committee (NEC);
(xiv) that, the respondent decided the matter in favour of Mr Kones on 14th January, 2003 and forwarded the name of Mr Kones to His Excellency the President on 17th January, 2003, and since then the respondent has claimed ultimate authority of interpretation of sections 1A and 33 of the Constitution of Kenya together with the Constitution of Ford People, the first applicant;
(xv) that the respondent by itself, its Chairman, Commissioners, agents, servants and/or employees had acted in breach of the applicants’ rights as constitutionally given and reasonably perceived;
(xvi) that as a result of the respondent’s conduct, the Applicants have suffered loss and damage in terms of –
• discriminatory treatment and denial of the applicant’s constitutional rights and/or democratic rights of representation;
• causing the applicants embarrassment and public ridicule in the perception of right-thinking members of the public;
• compromise to the integrity and good governance of Ford People;
• loss of privileges that would attend the second applicant’s position as a nominated Member of Parliament.
Counsel for the respondent drew a Statement of Grounds of Opposition on 13th June, 2003 and filed it on 16th June, 2003. The substance of this statement runs as follows:
(i) the first and second applicants have no capacity to maintain these proceedings on behalf of Ford People;
(ii) the application is incompetent and void in law;
(iii) the respondent had performed a constitutional duty when, through it, the Party Leader of Ford People forwarded to the President the name of Kipkalya Kiprono Kones for naming as an MP on the Ford People ticket;
(iv) Ford People had forwarded two names for nomination (Kipkalya Kiprono Kones – received on 3rd January, 2003; and Kimani wa Nyoike – received on 4th January, 2003);
(v) by its conduct, Ford People had left the matter in the hands of the respondent who had earlier advised the first applicant to forward only one name to His Excellency the President through the respondent;
(vi) before forwarding the name of Kipkalya Kiprono Kones, the respondent read the presentation made in support of the nomination of each candidate;
(vii) the issue is not one of interpreting the Constitution of Ford People, but one of performing the nation’s constitutional duty by the respondent;
(viii) the decisions taken by the respondent are not justiciable by way of judicial review proceedings.
Further Grounds of Opposition, dated 3rd September, 2003 were filed by the respondent on 5th September, 2003. In these further grounds the Electoral Commission of Kenya states as follows:
(i) the respondent had not misinterpreted the Constitution of Ford People, the first applicant;
(ii) the circumstances of this matter are not justiciable by way of judicial review proceedings or otherwise against the respondent;
(iii) the appointment of nominated Members of Parliament was made by the President of the Republic of Kenya who is not party to the proceedings and whose act it is sought directly and/or indirectly to quash.
On file is a Replying Affidavit by Mr Kipkalya Kiprono Kones as an interested party, sworn on 30th July, 2003 and filed on the same date. The essence of this affidavit may be set out as follows:
(i) that the Electoral Commission of Kenya, ie the respondent, in execution of its constitutional duty to process the nominations made by political parties for the duly allocated nominated seats, did process the deponent’s documents as the duly nominated MP of Ford People, ie the first applicant;
(ii) that the deponent’s nomination was properly carried out in accordance with the Ford People Constitution and following deliberations by the Party’s National Executive Committee (NEC);
(iii) that Ford People’s NEC did not, at any time, forward the name of the second applicant as the Party’s duly nominated candidate for the Party’s allocated nominated seat in the National Assembly;
(iv) that there had been a joint-meeting of the NEC and the Parliamentary Group (PG) of Ford People, held on 3rd January, 2003, attended by the second applicant, where the deponent won the majority vote for the Ford People nominated seat in Parliament;
(v) that the deponent’s nomination was communicated to the Electoral Commission of Kenya (the respondent) by the Party Leader who is the principal spokesman of Ford People by art 6 of the Party’s Constitution, and his communication is conclusive on the question of the Party’s nominee;
(vi) that the joint-meeting of Ford People’s NEC and PG held on 3rd January, 2003 was a properly convened meeting of the Party and the second applicant duly attended it on that basis though he left of his own accord while the minutes were being prepared and after realising that Party members had not elected him as their nominated MP;
(vii) that minute 03/2003 of the said joint Ford People’s NEC and PG meeting showed clearly that a certain agreed formula had been adopted to determine the name of the Party’s nominee for Parliament;
(viii) that it is not true for the second applicant to claim that Ford People’s NEC unanimously recommended him to be the Party’s nominated MP, and that the minutes of the NEC give a different account;
(ix) that the deponent’s official appointment as an MP by the President is now a fait accompliand the applicants’ application is overtaken, as the deponent’s name was duly gazetted on 24th January, 2003 and he was sworn in as the nominated MP for Ford People’s slot on 18th February, 2003.
The hearing of this application has taken a protracted course: the matter at the preliminary stage came before the Honourable Mr Justice Kuloba on 17th February, 2003; then before the Honourable Mr Justice Ransley on 19th May, 2003, 5th June, 2003 and 17th June, 2003; before the Honourable Mr Justice Nyamu on 7th July, 2003 and 9th July, 2003; and before the Honourable Mr Justice Rimita on 21st July, 2003.
The first time a hearing of the main application took place on substantive issues was on 21st July, 2003 before the Honourable Mr Justice Rimita. I will consider counsel’s submissions at this stage, before dealing with issues raised later when the hearing took place before me.
Counsel for the applicant submitted before the Honourable Mr Justice Rimita that it had been necessary to resort to judicial review, rather than a petition, because this was not an election case, but was instead a nomination case in respect of which individual political parties designated candidates, and forwarded the relevant names to the Electoral Commission of Kenya (the respondent) for further forwarding to His Excellency the President to make the final appointment as provided for under section 33 of the Constitution of Kenya. Mr Kihara for the applicant submitted that there was no provision of the law in express terms, on how to secure the rectification of a wrong nomination process. He gave as an instance in this regard, a situation in which a person who is not qualified for nomination has been presented to the nominating authority, and wondered whether His Excellency the President would have no choice but to officially appoint such a person. He submitted that, in the light of the provision of section 1A of the Constitution of Kenya, it is not possible for the President to decide the nomination question on behalf of a party. By that section, which was inserted into the Constitution in 1997, the multiparty political system was introduced as a new democratic dispensation, and political parties were duly empowered to play a major role in the functioning of the constitutional order.
Mr Kihara submitted that the role of the political party in the initial nomination of the person to be designated Nominated Member of Parliament was crucial. Thus the Electoral Commission had requested Ford People, the first applicant, to give one name, produced by the Party’s own procedures of management. However, the first applicant instead of forwarding one name, gave two names. One of these names was forwarded by the Leader of the Party, Mr Simeon Nyachae; the other was forwarded by the Secretary-General of the Party. In these circumstances, counsel submitted, the respondent ought to have undertaken an inquiry to enable itself to take the correct decision. The respondent erred, counsel submitted, by taking a decision and announcing it through the print media, that Ford People’s nominated candidate was Mr Kipkalya Kiprono Kones, and they took this decision without informing the applicants.
Counsel for the applicants submitted that the Electoral Commission of Kenya (the respondent) is a public body, carrying the duty to act judicially; and hence the Court has powers to issue an order of certiorarito quash the decision of the respondent.
Mr Kihara submitted that the Electoral Commission could not show what provision of the law empowered it to nominate Mr Kipkalya Kones and not Mr Kimani wa Nyoike. He submitted that section 33(5) of the Constitution of Kenya provides that the nomination decision is to be forwarded by political parties through the Electoral Commission, and the duty of nomination did not rest with the respondent. He submitted that the applicants did have legitimate expectations that the respondent would adopt a judicious procedure for determining which name was to be forwarded for gazettement as the Nominated MP under the Ford People ticket. Counsel argued that, as the respondent was seized of two nominations against one slot, the respondent must have known that a decision had to be made, because the alternative was to forward both names, which could not be done, under the law. The seat in question was in the highest law-making body of the country, and was thus a coveted office. The respondent must have known that, in the premises, there was a contentious and important decision, with implications for rights of the parties, to be made. Counsel then posed the question whether or not the respondent decided the question in a wrong or high-handed manner. Did the respondent accord both parties a hearing? Was the respondent not aware that there were two nominees? If the respondent was so aware, what facts did the respondent take into account, when it took the decision it did? What issues did the Respondent consider, in arriving at the decision taken? Counsel recalled the content of paragraph 8 of the applicants’ Statement of Facts, dated 12th February, 2003 in support of the application:
“On 14th and 15th January, 2003 or thereabouts, the applicants and other officials, to their surprise, learned from the print and electronic media [of] reports that the respondent’s Chairman or Commissioners had without even informing any of the applicants orally and/or in writing, decided to decide on their own to interpret and had misinterpreted the applicant Party’s Constitution, and instead of forwarding or processing the second applicant’s name for nomination to His Excellency the President, had wrongly preferred and started processing the name of one Honourable Kipkalya Kones whose name had been forwarded to them in contravention of the [relevant] articles of the Party Constitution.......”
This crucial statement forming the basis of the applicants’ claim, as counsel correctly, with respect, submits, has not at all been traversed by the respondent – which leaves as an established common cause the proposition that the respondent had wrongly and without fair procedure arrogated to itself responsibility for interpreting the Ford People Constitution, which interpretation led the respondent to an unjust disregard of the name of the second applicant as the candidate for appointment to Parliament under the Ford People ticket.
Counsel stated that a letter had been sent by the respondent to the Secretary- General of Ford People, regarding the nomination of Members of Parliament. In this letter, the Chairman of the Electoral Commission had urged political parties proposing names for the nominated seats in Parliament, to comply with the law. Immediately thereafter, on 3rd January, 2003 a letter by the Honourable Mr Simeon Nyachae, the Ford People Party Leader, was sent to the respondent indicating that Mr Kipkalya Kiprono Kones was the Party’s proposed name for the nominated seat. And on 6th January, 2003 a letter by CA Nyachae of Nyachae & Co Advocates was written to the Chairman of the Electoral Commission, the respondent. This letter purported to be on behalf of Ford People, and says in part as follows:
“It has come to the attention of the Party Leader that a letter has been received by yourself signed by the Party’s National Chairman, Mr Kimani wa Nyoike and two other persons, and which purports to convey the name of Mr Wa Nyoike as the Party nominee for the one (1) position of nominated Member of Parliament availed to Ford People by the Electoral Commission of Kenya. “Ford People would like the Electoral Commission of Kenya to note that any such communication is mischievous and lacks the authority of the Party”
The said letter, counsel for the applicant submitted, was clear evidence that there was a dispute regarding Ford People’s nomination for the one parliamentary seat; and this should have put the respondent on notice that an inquiry was necessary as a basis for forwarding just one name to His Excellency the President. Counsel posed the questions: why did the respondent, in these circumstances, not give a hearing to the applicants? Why did the respondent not seek the views of the interested parties? Counsel submitted that, the moment the respondent knew there were two nominations for the one nominated seat, the respondent was duty-bound to resolve the conflict, and in this regard articles 11 and 18 of the Party Constitution would have been given effect. Article 11 establishes the “decision-making organs of the Party”, namely:
(a) the National Executive Committee;
(b) the General Council; and
(c) the National Delegates Congress.
And article 18 deals with the “nomination of Party candidates”, and provides for:.
(i) Party Presidential Candidate;
(ii) Party Parliamentary Candidate; and
(iii) Party Local Authority Candidate.
Article 18(b) states that
“where only one person is nominated without opposition as a candidate........... such person shall be declared the Party candidate.”
Article 18(c) would seem ex facierelevant for the purpose of the present application. It provides:
“In special circumstances making it physically or technically impossible to hold a nomination by election........... the National Executive Committee shall convene and make an appropriate decision, in the best interest of the party.”
Mr Kihara for the applicant submitted that, following the Electoral Commission Chairman’s letter which advised political parties regarding the nominated parliamentary seats assigned to them, the Commission did receive communications indicating contentious nominations coming from the first applicant. The letter from Nyachae & Co Advocates, dated 6th January, 2003 shows that there had been a meeting of the Ford People Parliamentary Group attended by some members of the National Executive Committee, and that this meeting was not chaired by the Party Chairman or the Party Vice-Chairman. It also shows that the meeting was acrimonious, and that some members had made a protest walk-out. Counsel contended that those circumstances called for an inquiry by the respondent, considering in particular that the one replying affidavit filed was from an interested party, Mr Kipkalya Kiprono Kones, who could not have deponed to facts within his knowledge as he had not attended the said meeting. Counsel questioned the integrity of such an affidavit which did not even disclose its source of information. He submitted, quite correctly, with respect, that depositions made in those circumstances were of hardly any value to the Court.
Counsel for the applicant also argued, in effect, that a meeting at which Ford People’s elected MPs are dominant is not to be confused with a National Executive Committee meeting. He submitted that a reading of articles 11 – 18 of the Constitution of the Party will show that the Party’s MPs did not automatically become members of the Party’s NEC, and the position of the Party Leader, under the terms of article 6 of the Party Constitution, is only that of the Party spokesman and does not confer any extraordinary powers of decision-making.
Counsel for the applicant made specific submissions on the respondent’s Grounds of Opposition and the Further Grounds of Opposition filed on 16th June, 2003 and 5th September, 2003 respectively. On the question whether the applicants have the capacity to bring these proceedings, counsel stated that the applicants are national officials of the party. He referred to a letter on file dated 8th November, 2002 from the Registrar of Societies. This letter is addressed to the Electoral Commission of Kenya, and indicates the registered names of officers of Ford People as:
(i) Party Leader – Hon. Simeon Nyachae;
(ii) National Chairman – Kimani wa Nyoike;
(iii) Secretary-General – Kipkorir Menjo;
(iv) National Treasurer – John Kosgei Chebii;
(v) National Organizing Secretary – Sammy Maina Kariuki.
Counsel submitted that the Party can only bring proceedings in the name of its registered officers; and therefore the applicants did indeed have the capacity to bring and maintain the present application. Counsel also remarked the significance of the fact that the interested party had made no challenge to the authority of the applicants to file the proceedings. Mr Kihara further submitted that the second applicant is also directly affected by the decision of the respondent. As he is also the National Chairman, the second applicant is capable of maintaining the proceedings in his own capacity as well as in his official position.
On the respondent’s claim that the grievance of the applicants is not justiciable by way of Judicial Review or otherwise, counsel submitted that this claim was vague, though it could be met with the assertion that the applicants have fully complied with the provisions of order LIII of the Civil Procedure Rules as read together with sections 8 and 9 of the Law Reform Act (cap 26). Mr Kihara submitted that the High Court’s power of Judicial Review is available even where ministerial acts are involved; and in the instant matter the Electoral Commission of Kenya had acted in excess of its powers.
In support of his case, counsel cited the case, Anisminic Ltd v Foreign Compensation Commission and another[1969] 2 AC 147, in which Lord Reid rendered an important decision on the basis of the following principle (P 175):
“It follows that the commission rejected the appellant’s claim on a ground which they had no right to take into account and that their decision was a nullity. I would allow this appeal.”
Mr Kihara also argued that the respondent misconstrued its mandate and made a wrong determination crying out to be quashed; and he drew analogy, in this submission, with the observation of Lord Pearce in the Anisminiccase (P 201):
“If, therefore, the commission by misconstruing the Order in Council which gave them their jurisdiction and laid down the precise limit of their duty to inquire and determine, exceeded or departed from their mandate, their determination was without jurisdiction.....”
Counsel for the applicants also drew the Court’s attention to a passage in the judgement of Farwell, LJ in Rex v Shoreditch Assessment Committee, Ex parte Morgan[1910] 2 KB 859, at P 880 which was quoted with approval at P 209 in the Anisminiccase, by Lord Wilberforce:
“Subjection in this respect to the High Court is a necessary and inseparable incident for all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure – such a tribunal would be autocratic, not limited – and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact.”
Mr Kihara submitted, on the authority of Anisminic, that the Court is expected to exercise its supervisory duty where the tribunal has acted ultra viresand outside its proper jurisdiction. He submitted that the Court would, besides, inquire whether the tribunal has adhered to the Principles of Natural Justice. He submitted that these principles of adjudication have already been adopted in Kenya, as shown by the Pangani Girls’ Schoolcase, Miscellaneous Civil Case No 818 of 1992, in which judicial review orders were made for the reason that school girls had been subjected to harsh disciplinary measures without being accorded the right to be heard. Counsel argued that in the same way, the failure to hear a prospective parliamentarian, before deciding against him, should attract quashing orders.
Counsel for the applicant submitted that although the final act of appointment to nominated seats in Parliament was expressed by the President, thanks to section 33(5) of the Constitution, this was not the decision of the President; it was not a discretionary act of the President; it was not founded on any notion of Presidential prerogative. The appointment resulted from the prior act of the Respondent, instead. From this point onwards the hearing took place before me, and, with the consent of the parties, directions were given that the hearing would proceed to new submissions, without compromise to the earlier hearings. Mr Kihara went on to highlight the main issues emerging from the earlier hearings. He remarked that when, in 1997, the Constitution of Kenya was amended to confer upon political parties the right to identify candidates for the twelve nominated seats, no express provisions were set out in relation to procedures of redress, where there were grievances in relation to the nominated seats. Counsel submitted, quite correctly, with respect, that the residual law ought, in these circumstances, to be resorted to as the basis of justice. He further submitted that the Electoral Commission should be considered a quasi-judicial body subject to the Court’s established jurisdiction of Judicial Review. He submitted that such an attribute for the Electoral Commission flows from the flowing facts: the Commission is established by the Constitution as a public body, funded by the public and entrusted with public duty; its Chairman is required to have the qualifications of a judge; it is placed under obligation to act judicially. Section 33 of the Constitution, under which the Electoral Commission played a special role, required the respondent to conduct an apportionment of certain parliamentary seats. Sub-sections (3), (4) and (5) provided for nomination for the twelve nominated seats on the basis of parliamentary parties and their command of elected seats in the House. Mr Kihara submitted that such provisions, in effect, instituted a law of proportions, the implementer of which was the respondent. This, it was submitted, created a quasi-judicial responsibility which was bestowed upon the respondent. The main task of nomination was left with the Party, but the Electoral Commission of Kenya had to take decisions on related matters of ratio and gender; and its decisions would then be conveyed to the President for formalisation and gazettement.
Against this background, counsel for the applicants submitted, the respondent had a duty to act judiciously and to make appropriate inquiries before forwarding names to His Excellency the President for formalization. The case for such inquiry, Mr Kihara submitted, was all the more compelling as letters had in fact been received by the respondent from advocates who would have left no impression but that the Electoral Commission was handling a matter that held out clear prospects of litigious action. Yet, as counsel submitted, the Commission failed to take due care or to arrive at its decision in a judicious manner. It was submitted that the respondent had chosen to be guided by an inappropriate decision and choice purporting to come from the Party. Counsel submitted that the preference relied upon by the Electoral Commission had not come from the proper decision-making entity established under article 11 of the party’s Constitution. In particular counsel observed that the party minutes produced by the Party Leader, which minutes led the respondent to the decision it took, did not identify the Secretary at the meeting in question. While the respondent had been told that the second applicant was the author of his own injury because he had left the said meeting prematurely, it had not been stated on behalf of the Party Leader, or of the respondent, who exactly chaired the meeting once the National Chairman left. Mr Kihara submitted that the structure of Ford People was founded on a negotiated coalition, under which the role of the Party Leader, as spelt out in the Party’s Constitution was that of spokesman, as well as that of being the Party’s presidential candidate.
Mr Kihara also remarked the fact that the minutes of the Party meeting presented to the respondent and which led to the appointment of Mr Kipkalya Kiprono Kones rather than Mr. Kimani wa Nyoike to Parliament, showed the persons in attendance as members of the Ford People Parliamentary Group, but this was not accurate. These persons had been elected on 27th December, 2002 and had not been sworn in as Members of Parliament; the very best they could at the time be, therefore, was MPselect. The election results had not been gazetted, and therefore, it was argued, there was at the time no valid Ford People Parliamentary Group. The writs certifying the elected status of the individuals concerned, had not yet been received from the returning officers in the field. Mr Kihara also submitted that, by the Ford People Constitution, the Party Leader has no competence to call a National Executive Committee Meeting.
On the representation by the respondent that the decision of the Electoral Commission could not be questioned by way of Judicial Review, Mr Kihara raised the point that it must then be being contended that the respondent’s decision cannot be questioned in a court of law – and this he seriously doubted. Counsel submitted that the Court has a great wealth of past decisions under Judicial Review, in matters such as the present one. He questioned whether the Legislature could have intended to create a public body such as the Electoral Commission, with constitutional powers that are limitless; and his submission, which ex faciemakes good sense, is that the Kenya Parliament could not possibly have intended to create a legal rogue. And once it is shown that the Electoral Commission has acted in excess of its powers, then its decision-making process must be subjected to the review jurisdiction of the Court. In this regard counsel cited section 123(8) of the Constitution, which provides that nothing in the Constitution is to be construed as precluding the exercise of powers by the Courts. And therefore, counsel submitted, and correctly, with respect, the Electoral Commission of Kenya is subject to the jurisdiction of the Court, in relation to any question regarding the proper exercise of its powers. Counsel relied on the Anisminiccase and submitted that the court has supervisory functions where public bodies exceed the powers entrusted to them. By virtue of its supervisory powers, counsel submitted, the Court will also inquire whether the Rules of Natural Justice have been observed. Counsel relied on the case, Hypolito Cassiano De Souza v Chairman and Members of The Tanga Town Council[1961] EA 377 as establishing the basic principles for the operation of Rules of Natural Justice: one of these principles being that where no procedures on a particular matter are prescribed to guide a public body in decision-making, there may be an obvious implication that some form of inquiry must be made such as will enable the body in question to determine the matter in issue; and in such a case the tribunal, which should be properly constituted, must do its best to act justly and to reach its ends by just means. Such a tribunal must create a fair opportunity for the parties to the controversy to correct or contradict any statement prejudicial to their position. The moment the tribunal takes cognisance of the existence of a lisor quasilis, that moment the duty accrues to give a fair hearing before arriving at a decision. Mr Kihara drew analogy with the Judicial Review case in the Pangani Girls’ Schoolcase, Miscellaneous Civil Case No 818 of 1992, in which three school girls had prayed for an order of certiorarito remove into the Court and quash the decision to subject them to severe punishment, taken by the Board of Governors of the school. The final orders were in favour of the school girls, and the basis of these orders was that the applicants had not been accorded a hearing. Mr Kihara has argued that if the school girls could be so vindicated in the Panganicase, why not the National Chairman of Ford People, in relation to the nomination of parliamentary candidates?
Counsel then addressed the point made for the respondent, that even if it had made a wrong decision, this had been effectively cured by the intervention of His Excellency the President who did the final appointment of parliamentarians against the nominated seats. Counsel submitted that the appointment of parliamentarians under the Constitution was not a discretionary matter for the President, nor was it accorded any protection as a special prerogative not open to inquiry under ordinary rules of law. Consequently, by challenging the nomination, counsel submitted, no prerogative of the President was being challenged. What was being challenged, counsel argued, was the decision-making process of the Electoral Commission of Kenya. Mr Kihara submitted that it was all too easy for a crucial agency of public service such as the Electoral Commission to take wrong decisions, and then seek to institutionalise and perpetuate such decisions by invoking the cover of State House. Counsel submitted, quite logically, that this would be contrary to the spirit of the rule of law. Counsel submitted that if it was a wrong decision to forward the nomination of the Honourable Mr Kipkalya Kones instead of that of Mr Kimani wa Nyoike, then the Court should not be reluctant to lend its powers to a judicial review process and to state the correct position in law. He further submitted that if the respondent acted in excess of its powers, then there was jurisdiction to quash the decision and to issue appropriate orders.
In support of this line of argument, counsel for the applicants cited passages from the authoritative work, Administrative Law,8th Edition by Sir William Wade and Dr Christopher Forsyth. At pages 707 – 708 the following passage appears:
“The Anisminiccase and its sequels were the culmination of the judicial insistence so often emphasised in this work, that administrative agencies and tribunals must at all costs be prevented from being sole judges of the validity of their own acts. If this were allowed..... ‘the rule of law would be at an end’ .......
“[Judicial] review is a constitutional fundamental which even the sovereign Parliament cannot abolish........and any attempt to abolish it is an abuse of legislative power. .............
“Parliament is mostly concerned with short-term considerations and is strangely indifferent to the paradox of enacting law and then preventing the Courts from enforcing it. The judges, with their eye on the long term and the rule of law, have made it their business to preserve a deeper constitutional logic, based on their repugnance to allowing any subordinate authority to obtain uncontrollable power. Needless to say, they have maintained throughout that they are correctly interpreting Parliament’s true intentions.”
The relevance of these principles in the judicial process in Kenya may be seen in some of the decisions so far made. Counsel did cite a recent Judicial Review case, Republic v Minister for Local Government and Attorney-General, Ex parte Joseph Okoth Waudi, Miscellaneous Civil Application No 802 of 2003. In that case the applicant was nominated by the National Rainbow Coalition (NARC) Party as a councillor for a nominated seat in the Municipal Council of Mombasa. As required under the law, the Party forwarded the applicant’s name for verification by the Electoral Commission of Kenya (the respondent in the present matter). The Electoral Commission approved the name and credentials of the applicant, and forwarded to the Minister for Local Government for gazettement and thus formal designation as the Nominated Councillor. The Minister proceeded to make the appointment and gazettement of the applicant as a lawfully nominated councillor. But later, the Minister revoked the nomination, and published a revocation decision in the Kenya Gazette Notice No 4201. The Minister did not stop there; he proceeded to nominate one Fred Oyucho as a Councillor in place of Joseph Okoth Waudi. The Honourable Mr Justice Lenaola issued orders to quash the Minister’s decision to revoke the nomination of Mr Joseph Okoth Waudi. In his words:
“The spirit, as I understand it, is to ensure that the Minister for Local Government like the President with regard to the National Assembly, did not exercise these powers to the exclusion of all other parties. Therefore, by the addition to section 26 [of the Local Government Act (cap 265) – addition made by Act No 10 of 1997], he too is limited in his powers and all he can do is receive vetted names and appoint by gazettement in the Kenya Gazette.”
The learned judge added that, by the 1997 insertion under section 26 of the Local Government Act, “firstly, the discretion given to the Minister was either taken away or made subject to consultations and, secondly, the principles in section 33 of the Constitution must be adhered to in all cases of nominations.” The learned judge also stated:
“.........it would be against the spirit of section 33 of the Constitution to allow consultations up to the point of appointment and then allow the Minister to revoke the appointment without the same process of consultation. The President cannot do that under section 33 and mutatis mutandisthe Minister should not do that under statute in spite of the express provisions of section 27(2) of the Act.”
Mr Adere for the respondent submitted that the applicant’s grievance could not be solved by way of Judicial Review, because there was no order or decree or conviction or any other proceedings that had come to pass before the Electoral Commission of Kenya, in respect of which Judicial Review proceedings could be brought. Counsel argued that there had not been any act on the part of the respondent such as would attract the issue of an order of certiorari, in the terms contemplated by order LIII of the Civil Procedure Rules and section 9(3) of the Law Reform Act (cap 26). Mr Adere argued that what had taken place at the Electoral Commission of Kenya was none of the specific elements stated in the Act of Parliament to warrant the issuance of Judicial Review Orders. Counsel submitted that, in consequence, the decisions taken by the Electoral Commission were not justiciable, and thus there was no legal basis for the applicants’ prayers. Counsel argued further that just as certiorariwas inapplicable, so was it also with prohibition – for the reason that the impugned act had taken place more than a year ago and was well past the stage of prohibition. Mr Adere submitted, quite rightly, with respect, that the order of prohibition would ordinarily be available only where the proceedings impugned were about to start, or were continuing, and not where they were over and done with already. He drew a distinction, again quite correctly, between the mode of operation of an order of prohibition and one for injunction: in the case of an injunction, it is possible to issue an order of mandatory injunction even when the act impugned has been effected and completed; but an order of prohibition would not be available at this stage.
With regard to the applicants’ prayer for an order of mandamus, counsel for the respondent posed the question as to what act the Court can at this stage order the respondent to perform. He submitted that the Court is being asked to order that the second applicant be nominated to Parliament; yet the Court lacks jurisdiction to order the Electoral Commission of Kenya to forward the second applicant’s name to the President for nomination. Mr Adere argued, quite persuasively, with respect, that it was not the role of the Court to determine which name should be forwarded to the President. But by the same token, counsel was admitting what the appellants had affirmed earlier, that the role of His Excellency the President in this matter is purely formal and facilitative as required by the Constitution, but the critical decision and the one which must lie at the centre of this judgement, is the decision made at the Electoral Commission of Kenya. It has to be stated at this stage, therefore, that the outcome of these proceedings will revolve around the propriety and legality with which the respondent made its decision on nomination to Parliament under the Ford People ticket.
Mr Adere submitted that the choice of the name to be forwarded to His Excellency the President for appointment to Parliament, was an executive function, in which it would not be in accordance with the law for the Courts to dabble. In substance this is a valid argument, but only subject to the basic principle of judicialism as a deeply-rooted component in the workings of the Constitution and the constitutional order: and specifically, where an agency of the Executive has a reserved function under the Constitution, that function must be performed without high-handedness, without abuse of power, without violation of the Rules of Natural Justice. This is because all reservations of competence under the Constitution are made not for the glory of power and might, but for the interests of the citizen, for the enhancement of human rights, for compliance with the rule of law. It is the responsibility of the Court to inquire into matters pertaining to due compliance with those principles. I take the position, therefore, that when he attributed the determination of names to be forwarded to His Excellency the President for appointment, to the Executive, counsel for the respondent was by no means implying that, in these circumstances, the Courts must decline all jurisdiction and stand mute, in the face of charges by applicants such as the ones in these proceedings, that the Electoral Commission of Kenya did not comply with the rule of law.
In support of his submission, counsel for the respondent cited the case The Republic v Director-General of East African Railways Corporation [1977] KLR 194, with an emphasis on the following wording in the summary of the holding (P 195):
“...........where, as here, there were bars on the exercise of the Court’s discretion to make an order of mandamus, although the bars were not absolute, the exercise of that discretion in favour of the applicant would constitute judicial interference with the executive arm of the government.”
I would hold, however, that the above passage does not in any way limit the Court in its wider jurisdiction to ensure the dispensation of justice as between suitors. This position is taken from my earlier discussion of principles of judicialism, as they imbue the entire scheme of application of the constitutional law, but also in addition, it emerges from the very words of the Honourable Mr Justice Chesoni who decided the Railways Corporationcase. The late learned judge stated (P 201) as follows:
“.........it must be remembered that the Court as a custodian of the rights of those under its jurisdiction must ensure that justice is done to those who come before it regardless of whether or not that interferes with the management of the executive arm of government. That is why, where there is no other remedy open to the applicant, the Court has no choice but to grant the order of mandamus(fiat justitia) so that justice may be done and be seen to be done.......”
Mr Adere submitted that the present matter is not an appropriate one for an order of mandamus, because the effect of such an order would be that the Executive is being told to do its duty in a particular way – and that this would amount to a different entity taking over the functions of the Executive. Counsel stated correctly that mandamusis applicable where there is a public duty resting upon an official (or a public body) and this duty is not being done; and the purpose of mandamusis to ensure that this public duty is done. The duty in this case, as counsel submitted, was to nominate a person, and the effect of mandamuswould be to order the President to appoint a particular person as a parliamentarian. This duty, counsel submitted, has already been done, and so no further duty remains outstanding. He submitted that if the duty was not done in accordance with the statute, then this is the condition under which the Court could intervene, but then, intervene only by nullification. This situation, counsel submitted, would suit the order of certioraribut not that of mandamus. In aid of this argument, Mr Adere cited Halsbury’s Laws of England, 3rd Ed, paragraph 112:
“The question to what tribunals or other person or bodies the orders will issue must be answered differently in respect of the three orders. Mandamuswill lie towards any person or body in respect of anything which appertains to his or their office and is in the nature of a public duty: it is not limited to persons or bodies whose office is judicial or who have a duty to act judicially. Orders of prohibition and certiorariwill, however, not lie except to courts and to other persons and bodies having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially. Moreover there are tribunals to which prohibition will lie but certiorariwill not, for the Court of Queen’s Bench will not remove into the Queen’s Bench proceedings not capable of being determined there, such as ecclesiastical proceedings, though it will interfere by prohibition to prevent an ecclesiastical court from exceeding its jurisdiction.”
Relying on the foregoing passage, counsel submitted that the Electoral Commission of Kenya (the respondent) is not a judicial body; that it has specific roles under the Constitution none of which is judicial; and that it is not empowered to determine individual rights. I have considered these various submissions anxiously. With regard to the contention that an order of mandamusif issued would, in effect, be issuing directives to His Excellency the President regarding his appointment to Parliament, it is already clear that I do not think so. On this issue, the respondent has put its case rather too high; for the role of the President is purely formal and facilitative, the critical decision having been taken and communicated through the respondent. I will, therefore, de-link the Electoral Commission of Kenya from the Presidency, and be concerned solely with the question whether the respondent did conduct its task of conveying the nomination in accordance with the law.
On the question whether or not the Electoral Commission is a judicial body, so as to be amenable to orders of certiorariand Prohibition, I think it is proper to be concerned with substance, rather than labels. From the passage cited above, from Halsbury’s Laws of England,it is to me apparent that orders of certiorariand prohibition do not lie only to a certain orthodox category of entities which may be described as judicial bodies. Judicial bodies, for the purposes of the two orders, are not necessarily courts of law, or indeed quasi-judicial tribunals of the kind associated with traditional administrative law. We must now include in this category “other persons and bodies having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially.” If we include these – as I believe we must – then the pertinent question for the applicants and for the respondent must be: Is the Electoral Commission of Kenya a person or body having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially?
This question has not been addressed with the sharpest focus, in particular by counsel for the respondent, upon whom the main burden here would rest. Counsel for the applicants did argue that being or not being nominated to Parliament, by virtue of the provisions of section 33 of the Constitution, is an issue that will create rights and legitimate expectations for particular individuals. This is a valid argument. He in whom the authority to determine such questions is reposed, clearly is being empowered to determine questions affecting the rights of subjects. Now, I would hold that whosoever, within the ambit of public responsibility, may be entrusted with such issues of rights of persons, would be carrying the obligation to act judiciously and indeed judicially, even if this element may not be expressly stated on the face of the statute. On the basis of this reasoning, I will hold that, in relation to the presentation of names to His Excellency the President for formal appointment to Parliament’s twelve nominated seats, the respondent did have a duty to act judicially. The effect of this holding is that in a proper case, the Electoral Commission of Kenya may be made subject to orders of certiorariand prohibition, to say nothing of mandamus, to which the respondent would be subject obviously.
As regards the discharge of the respondent’s responsibility, Mr Adere submitted that the Electoral Commission of Kenya merely acts as a secretariat, and that once names are forwarded to it for onward transmission to His Excellency the President, all the respondent does is to give one name. Counsel argued that whichever aspirants may have their names forwarded by the Party to the respondent, actually have no rights as such, and ought not to complain, whichever name happens to be the one forwarded to His Excellency the President for appointment. Counsel submitted that the first applicant duly submitted two names to the respondent; but as the Party had but one slot in Parliament, any one name could have been forwarded – as indeed was done – to His Excellency the President.
Counsel’s reasoning in this respect fails to stand up, and gives an impression of a national constitutional body entrusted with political-rights issues being governed purely through eye-rhyme and rough-and-ready criteria of conflict-resolution. In the first place it is not forthright for counsel for the respondent to assert that the first applicant quite properly submitted the two names, for forwarding to His Excellency the President for appointment. The Chairman of the Electoral Commission of Kenya had on 31st December, 2002 written a letter (Ref No EC/NAE/109A) to the Secretary-General of Ford People on the subject of Nominated Members of Parliament, in these terms:
“Pursuant to the provisions of section 33(3) of the Constitution of Kenya the Electoral Commission of Kenya (ECK) has determined that your political party is entitled to nominate one (1) Member of Parliament. The same subsection enjoins your political party to take into account the principle of gender equality.”
The records show that only the names of two men were sent to the respondent, so that there was in the first place a possible query regarding the constitutional requirement for gender equality; and then there was the contentious point, clearly brought to the attention of the respondent by counsel, and in good time, regarding the mode of selection between the name of Hon Mr Kipkalya Kiprono Kones and Mr Kimani wa Nyoike.
Here is a case in which, very clearly, there was a lisor a quasi-lis,a contentious matter to be resolved by the respondent judiciously and judicially. The parties had to be heard; the matter could not be resolved as if a casting of lots could dispose of it. The Electoral Commission of Kenya could not claim to be right by proceeding, in this context, as if its own preference was final and not subject to any restraint. To proceed as they did was an abuse of the process of the law.
Mr Adere sought to rely on Professor J F Garner’s work, Administrative Law,4th Ed (London: Butterworths, 1974), where the following passage appears (P 180):
“This does not mean.........that once the Courts have allowed certiorarito be brought impugning a decision of a particular tribunal or agency, that all subsequent decisions of that agency will in future be categorised as ‘judicial’ and subject to certiorari. One such case will establish a precedent only for similar decisions within the same jurisdiction of that particular agency. Again, an administrative agency may in some matters act administratively, and in others be required to act judicially, and it is even possible for a minister to be required to act judicially at one stage of a matter, and yet be free to act administratively at a later (or earlier) stage in the same matter. Only when the agency or minister is so required to act judicially will certiorari lie to quash his decision.”
This, for the purpose of the present proceedings, is a valuable passage insofar as it buttresses the flexible perception of the nature and functioning of the Electoral Commission of Kenya that I have already articulated earlier. In the measure in which the Electoral Commission was, in effect, determining the political rights of parties, the Commission was engaged in a judicial function and would be subject to orders of certiorariand prohibition. This does not preclude the possibility that on some other occasion, the same Electoral Commission might be held not to have been involved in a judicial or quasi-judicial function. I do not accept the submission of counsel for the respondent that the respondent was, in this case, engaged in an administrative function or was not amenable to orders of certiorariand prohibition. I thus also do not agree with counsel for the respondent when he argues that the Electoral Commission should not be made subject to judicial review proceedings.Counsel submitted that the respondent was not amenable to the issuance of an order of prohibition, and cited in support of this contention a passage from the case, Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge and Others,Civil Appeal No 266 of 1996:
“What does an order of prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the Rules of Natural Justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings......”
Mr Adere argued that the Electoral Commission of Kenya had not been involved in any excess of powers under the law. He submitted that it was incumbent on the applicants to show that the respondent had acted in excess of jurisdiction, or that it departed from Rules of Natural Justice, or that it acted without jurisdiction. Counsel submitted that the act whereof the applicants complain was not done without jurisdiction; was not in excess of jurisdiction; was not in departure from the Rules of Natural Justice.
However, these contentions are squarely traversed by the applicants’ case. In particular the applicants state with justification that the respondent made no inquiries or consultations, before forwarding the name of Hon Mr Kipkalya Kones to His Excellency the President for formal appointment as the Member of Parliament on the Ford People ticket. If the respondent had no authority to take such a decision – which is clearly the case – then the respondent did act without jurisdiction.
Counsel was drawing an analogy between the position of the elected Member of Parliament and the nominated Member of Parliament. He submitted that if a parliamentary aspirant has grievances against the person declared to have been elected, then under the law a challenge can only be made by way of petition and certainly not through judicial review; and that where such a petition is lodged, the Court’s role is limited to nullification and it cannot go on to pronounce a particular individual to have been the winner. He extended this analysis to the case of the nominated Member of Parliament, and argued that only His Excellency the President may make the appointment; and hence it would be wrong in law for the Court to declare that a particular person, such as the second applicant, be declared the nominated parliamentarian for the slot reserved to the first applicant. On this account, counsel proceeded to argue, the Court had no basis for hearing the applicants and indeed, the second applicant could not very well, or correctly in law, come before the Court complaining that he should have been nominated. This line of argument, as I have already remarked, would be tantamount to the second applicant being met with the riposte that he ought to be satisfied with whatever decision the Electoral Commission takes, even if he perceives such decision as unjust. In principle the Court cannot uphold such a line of reasoning, as it would entail that rights of one suitor will or will not be availed at the behest of some other person merely on account of the office that other person holds. Mr Adere sought to overcome this difficulty by relying on a passage from Halsbury’s Laws of England, 3rd Ed. This passage is concerned with local customary practices as factors that may, in certain circumstances, ward off the Court’s judicial review powers. The following passage appears at paragraph 254:
“Where an inferior court is one of civil jurisdiction, but by statute or custom it administers a law peculiar to its own forum in respect of some particular matter, and so possesses to this limited extent a jurisdiction which the superior Court does not possess, certiorariwill not issue to remove proceedings which come within that special jurisdiction.”
Quite obviously counsel’s intent in seeking reliance on local customs of unique, reserved application was to advance the point that the Electoral Commission, when it took the impugned decision, was operating in such a reserved domain and should not be made subject to certiorari. This argument is, with respect, somewhat strained in its thrust. I do not believe that there is any sphere of law, at least at the present time, which may be properly described as the law of the Electoral Commission of Kenya. This public body is governed by the Constitution and by the statute law, pure and simple; and within the framework of such body of public law, the Court’s Judicial Review powers are fully applicable.
In Halsbury’s Laws of England,3rd Ed counsel for the respondent found yet another basis for disputing the applicability of certiorarito the impugned act of the Electoral Commission. The relevant passage is in paragraph 255 and reads as follows:
“Certiorariwill not be granted where, if the order were subsequently quashed, the inferior Court could not be ordered to resume the proceedings. Thus, where an unauthorised person has assumed the office of coroner, and has conducted what purported to be an inquest, certiorariwill not be granted to bring up the inquisition, for the proceedings are not merely voidable, but wholly void; and so also, where the proceedings in an inferior court have become null and void by the operation of a statute, certiorariwill not be granted.”
Counsel submitted, on those principles, that if the Court were to order the Electoral Commission of Kenya to go through the same process of processing nomination, such a process would not be possible, and so the Court would be acting in vain. Counsel submitted that appointment had already been effected by the President, and the Court will not be in a position to order His Excellency the President to make another appointment in place of the one he had already done.
The reasoning of counsel in this regard does not in all particulars, and with respect, stand up. First, there has not been any claim that the Electoral Commission of Kenya did not have authority to forward the name of one candidate to the President for nomination. Indeed, this is the task entrusted to the Respondent by law. The only complaint is that the respondent had used wrong criteria and caused injustice, in the manner in which it determined the name to be forwarded to the President. Therefore the Electoral Commission’s action was not void ab initio,and such action remained on the record and liable to quashing in a process of Judicial Review.
Secondly, the continued reliance by the respondent on the title and dignity of His Excellency the President, as cover for any wrongs that may have attended the decision-making process at the Electoral Commission, cannot be allowed. I have already made it quite clear that the President’s role was strictly formal and facilitative, and His Excellency the President had passed no judgement of his own, on who should be appointed to Parliament as the candidate of Ford People.
The fallacy in the argument that the Electoral Commission cannot be made to conduct its role in the nominations afresh comes out when one takes the example where a nominated parliamentarian becomes bankrupt, dies, or is otherwise disqualified under the law. Quite clearly, in such circumstances the Electoral Commission would return to its role of processing nominations to Parliament made, as ought to be the case, by the political parties concerned. It should be stated again that the origination of nomination is not actually the responsibility of the respondent; and hence it would be an extravagant argument that it is the respondent which cannot be subjected a second time to the task of nominating a candidate in compliance with the law. The Court may at any time order the Electoral Commission of Kenya to have nominations conducted and processed for forwarding to His Excellency the President, for appropriate action under the Constitution.
The respondent’s case has repeatedly sought to attach its claims to the privileges and the status of the Presidential office. Counsel argued, for instance, that the Electoral Commission of Kenya could not be subjected to Judicial Review, so long as the President was not, and could not be by virtue of the protection of section 14 of the Constitution, party to these Judicial Review proceedings. It was urged that any order made would not affect the President, while he was the one who carried out the final appointment. It was argued that the proceedings ought not to have been brought against the Electoral Commission, because this Commission was only the secretarial arm of the President, with regard to the nomination process. Counsel argued that the Electoral Commission could not be required to do the nomination a second time, because the respondent had already done its duty with finality, nor could the president be called upon to do another appointment, and any order made against the President would be an order in futility, given the privileges and immunities attached to the Presidential office.
This line of argument, as I have stated earlier, misses the point that His Excellency the President had not been involved in the substance of the nomination, and that these proceedings are solely concerned with actions that took place at the Electoral Commission. The Court is an agency for the delivery of justice to suitors; and it cannot be told that any possible injustices committed at an agency established under the Constitution and the law, for the purpose of ensuring the fulfilment of the political rights of the people, are beyond redress. The Electoral Commission of Kenya is, as already made quite clear, subject to the law. Furthermore, the Electoral Commission of Kenya may not freeload on the immunities and privileges of His Excellency the President, for the purpose of escaping consequences of its own decisions which are seen to compromise the rights and legitimate expectations of the Kenyan people. It is held in this judgement that the Electoral Commission of Kenya is subject to the legal process like other normal agencies of the State, and it is subject, in a proper case, to the Judicial Review powers of the Court.
Counsel for the Respondent argued that the target of the judicial review process must be regarded as the process and not the merits of a case; and that the applicants’ rights had not been infringed by the impugned decision of the respondent. Counsel argued that the applicants should have moved the Court by plaint only, if their rights were thought to be compromised. He submitted that in a judicial review process, the only concern should be whether there was jurisdiction, and whether there was compliance with the law. Counsel submitted that the acts of the respondent had been done within the constitutional process, and he remarked that the applicants had not at any point doubted that the Electoral Commission had the right to forward one name to His Excellency the President for appointment. To support his argument that the Court should not be concerned with issues of merit, counsel cited the case Narok County Council v Trans Mara County Council[2001] 1 EA 161. The relevant passage appears in the summarised holding of the Court of Appeal at page 162:
“Though section 60 of the Constitution gave the High Court unlimited jurisdiction, it did not clothe it with jurisdiction to deal with matters that a statute had directed should be done by a minister as part of his statutory duty. In the instant case, the statute clearly provided that in default of agreement between the two councils, the apportionment of assets and liabilities would be undertaken as directed by the minister. The jurisdiction of the High Court could only be invoked where the minister refused to give a direction or, in purporting to do so, arrived at a decision that was grossly unfair or perverse.”
On the basis of this passage counsel argued that, under the law relating to the nomination of Members of Parliament, the responsibility lay with the President, and not the Courts.
This argument is inappropriate, in the light of my holding earlier on. The Court is dealing with the exercise of power within the Electoral Commission of Kenya, and not with the President’s facilitative actions taken at a subsequent stage. The distinction which counsel has sought to make between the process of decision-making and the substance of the decision itself is also unhelpful, as the applicants, by raising issues relating to observance of Principles of Natural Justice by the respondent, have certainly touched on the very core of process matters. Issues of this nature clearly belong at the same time to both process and substance.
Counsel for the respondent relied on the case, Mwau v Principal Immigrtion Officer[1985] KLR 72 to support the proposition that an order of mandamuscannot lie against the Electoral Commission. The relevant passage appears on page 78 and is taken from Halsbury’s Laws of England, 4th Ed, Vol 1, at page 127:
“The orders of mandamuswill not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority, to compel him to do something which is part of his duty in that capacity.”
Mr Adere argued that, to issue an order of mandamusagainst the Electoral Commission of Kenya would amount to putting the respondent at loggerheads with His Excellency the President, and that on this account, mandamuswas inapplicable. He argued that the Electoral Commission of Kenya is an inferior person in the nomination process, and that the superior is the President who is not a party to the proceedings. He submitted that the inferior has only obeyed the requirements prescribed by the superior, and therefore mandamuscannot issue. He contended that even if the commission were minded to comply with an order of mandamusin these circumstances, the superior could refuse, and this would amount to the Court making an order in vain.
This is an astute submission, but it is not consistent with the determinations of the legal position as I have already set out in this judgement. There is no evidence on file that His Excellency the President had referred the task of nomination of parliamentarians to the Electoral Commission. Nomination was required to be conducted by the individual political parties; and the respondent had a specific constitutional duty to process the nominations and to forward the same to His Excellency the President for appropriate formal actions.
Counsel for the respondent concluded his submissions by considering the Constitution of the political Party, Ford People, and addressing the courses of action taken by party officials prior to and subsequent to the conduct of the nomination process within the Electoral Commission of Kenya. He made reference to the two crucial letters, both written on the official letterheads of Ford People (Forum for the Restoration of Democracy for the People), PO Box 21030, Ngong Road, Nairobi, both on 3rd January, 2003 and both addressed to the Chairman, Electoral Commission of Kenya. One of these letters was done under the hand of the Honourable Simon Nyachae, Party Leader, and its content, in part, read as follows:
“Guided by ......... section 33 of the Constitution [of Kenya] as amplified by the contents of your letter [of 31st December, 2002], members of the Ford People Parliamentary Group together with members of the National Executive Committee of Ford People met on 3rd January, 2003 and deliberated on the matter. “Taking into consideration all interested and eligible members of Ford People and cognizant of the principle of gender equality, the person named below [ie, Kipkalya Kiprono Kones] was by consensus, nominated to be Ford People’s nominated Member of Parliament ......”
Bearing the same date is the second letter coming under the hands of the senior Party officials: the National Chairman (the second applicant), the acting Secretary-General, the Treasurer-General and the National Organising Secretary. Their letter is brief and states:
“The National Chairman of the Party to be Ford People’s Nominated Member of Parliament.”
Both letters have Party minutes to support them. The Party Leader’s letter has minutes headed “Minutes of the Joint Meeting of NEC and Parliamentary Group of Ford People, Friday, January 3, 2003. ” This meeting was attended by 21 persons, most of them described as MPs. The letter from the Party officials is preceded by a Ford People Notice calling a NEC meeting, issued on 29th December, 2002 by the acting Secretary-General. The proposed main agenda is stated as “Appointment of Ford People’s nominated Member of Parliament”; and the venue is stated as “Party’s Head Office.” The minutes bear the heading “Minutes of National Executive Committee Meeting held at the Party Headquarters on Friday, January 3, 2003 starting at 3 pm.” The minutes show that this meeting was attended by the office-holders of the Party, and that they disowned the meeting which was held earlier in the day at the behest of the Party Leader. At this NEC meeting, the name of Kipkalya Kiprono Kones as the Party’s nominee for parliament was rejected, and a unanimous decision was taken preferring the second applicant instead.
There were follow-ups by advocates, regarding actions that might be taken by the Electoral Commission of Kenya. On 6th January, 2003 counsel for the applicants wrote to the Chairman of the Electoral Commission of Kenya in these terms:
“We act for the Forum for the Restoration of Democracy for the People (Ford People) and we have been instructed by its National Executive Committee (NEC) to confirm from you whether you have duly confirmed and forwarded for gazettement the name of Mr Kimani wa Nyoike as the Party’s nominee for the one slot to Parliament in accordance with the letter dated 3rd January, 2003 signed under the hand of four (4) principal officials of the Party.”
On the same day a letter was written to the Chairman of the Electoral Commission by the firm of M/s Nyachae & Company Advocates, on behalf of the Party Leader. The letter reads in part as follows:
“It has come to the attention of the Party Leader that a letter has been received by yourself signed by the Party’s National Chairman, Mr Kimani wa Nyoike and two other persons, and which purports to convey the name of Mr Wa Nyoike as the Party Nominee for the one (1) position of nominated member of parliament availed to Ford People by the Electoral Commission of Kenya. “Ford People would like the Electoral Commission of Kenya to note that any such communication is mischievous and lacks the authority of the Party.”
It is stated at paragraphs 18 and 20 of the second applicant’s depositions of 12th February, 2003 that the forwarding of the name of Mr Kipkalya Kones to His Excellency the President as Ford People’s nominated parliamentary candidate took place sometime between 14th and 17th January, 2003. As this averment is not traversed, I will take it to be true; and it therefore means that at the time of the lawyers’ letters to the Electoral Commission of Kenya on 6th January, 2003 the Electoral Commission had not yet forwarded any name to His Excellency the President for nomination.
This is the background against which the submissions of counsel for the respondent, regarding Ford People and that Party’s Constitution, are to be seen.
Mr Adere submitted that the name of the Hon Kipkalya Kiprono Kones was properly presented to the respondent by the Party Leader, the Hon Mr S Nyachae. How? Because there are minutes showing how the name of the Honourable Kipkalya Kiprono Kones was arrived at; an electoral method had been used; there was an attendance register; the nominee whose name was presented is the one who won the most votes. Counsel for the respondent submitted that the letter forwarding the name of Mr Kimani wa Nyoike, by contrast, did not describe the process by which that name was arrived at. Mr Adere disputed the assertion by the applicants that the task of conducting the nomination was the responsibility of the National Executive Committee. He contended that the only valid process of nomination was that coming under the hand of the Party Leader, particularly because the Party Leader’s method involved a large number of voters from the membership of Ford People, whereas the nomination of Mr Kimani wa Nyoike involved “only a small group called NEC.”
Counsel then made submissions on certain provisions of the Ford People Constitution. He relied on article 6 of this Constitution to state that the expression “Party Leader” meant the head of the Party and the spokesman of the Party. He then considered article 12 which provided that the NEC’s membership included the Party Leader, in addition to other officials of the Party. He maintained that the functions of NEC, as stated in article 12(b) of the Constitution did not include the nomination of persons to fill the Party’s nomination slot in Parliament. He submitted that by purporting to nominate a person for the parliamentary seat, the NEC members were “committing a wrong against their own Constitution” and were acting ultra vires.Counsel submitted that article 18, which dealt with the nomination of candidates for election, was concerned with the Party’s Presidential candidate, the Party’s Parliamentary candidate, and the Party’s Local Authority candidates, but was silent about the nomination process for the nominated seats in Parliament. Counsel submitted that the Party’s Constitution will not help the Court to find how a candidate for nomination would have been identified; and therefore, counsel argued, the matter must be resolved within the framework of article 6, which reposes broad powers in the Party Leader, and so the Honourable Mr Nyachae as the Party Leader did act quite properly in forwarding to the Electoral Commission the name of the Honourable Mr Kipkalya Kones. Counsel argued that only one name, that of Mr Kipkalya Kikprono Kones, was properly placed before the respondent, and consequently the Electoral Commission of Kenya did all the right things in forwarding that name to His Excellency the President for formal appointment while excluding the name of the second applicant.
Mr Adere further submitted that the present application was improperly before the Court, because article 27 of the Party Constitution provided for an internal procedure for the resolution of disputes of this kind. Counsel argued that “the parties should have met on their own, and agreed on which of the two was to be nominated.” In support of this contention counsel cited the case, Hinga & Another v PCEA[1986] KLR 316 where there was a dispute within the membership of the Presbyterian Church of East Africa. The holding of the Court is summarised on page 318:
“1. In order for an issue to be justiciable, it must constitute a cause of action in law and it must be an issue concerning a right to property, contract or any other legal right.
“2. Also, the issue must not be a domestic matter that can be dealt with by the laws and regulations concerning a particular body or organization.
“3. The issues complained of in the plaint were issues touching on the conduct and integrity of the second defendant as a priest and the Constitution of the PCEA Church made sufficient provisions for dealing with those complaints. The issues before the Court were therefore not justiciable.
“4. A court of law should be slow in interfering with church matters, unless the Rules of Natural Justice were being violated. In this case, the Court was satisfied that there was no such violation.”
Although counsel relied on the above passage to support the proposition that the Court should not intervene in the activities inside Ford People that led to the respondent forwarding for appointment the name of Mr Kipkalya Kiprono Kones rather than Mr Kimani wa Nyoike, it is not clear how the Hingacase would help in that cause. First, a crucial plank in the applicant’s case is that the Electoral Commission had acted in disregard of established Principles of Natural Justice, and that this fact ought to occasion the Court’s intervention. Secondly, and more importantly, the question must be asked whether the private, spiritual matters which were in issue in the Hingacase will stand on the same plane as the role in the political and constitutional order of the political party, in Kenya today. From the moment, in 1997, when the Constitution of Kenya was amended, with the insertion of section 1A reading “The Republic of Kenya shall be a multiparty democratic state”, the preliminary motions for entry into Parliament, and indeed for accession to the high office of President, are the exclusive province of one socio-political entity, namely the party; and therefore the very realisation of essential political and constitutional rights, at various levels, depends on the mode of conduct of the affairs of political parties. Taking judicial notice of this phenomenon, I would hold that the play of the processes of legality within Kenya’s various political parties is infinitely more important than in an essentially spiritual organization such a Church; and consequently the Courts must be prepared to intervene repeatedly in the conduct of party affairs, to ensure that the rule of law invariably governs the making of party decisions which have a bearing on the exercise of political and constructional rights by the citizen. I would, therefore, not accept counsel’s submission that “political party matters are resolved within the party.” The submission is not in accordance with the correct position in law.
Counsel for the respondent contested the submission made for the applicants that there was a failure of Natural Justice in the taking of the impugned decision to forward to His Excellency the President the name of one candidate rather than the other. The main thrust of this argument is that the Electoral Commission of Kenya had, on 6th January, 2003 received a letter from each of the advocates for the contenders for the nominated parliamentary seat; and that this was a sufficient hearing in the aftermath of which the respondent had later proceeded, in every respect lawfully, to forward one name for formal nomination. This, with respect, is a rather strained notion of a hearing, for the purpose of satisfying the requirements of Natural Justice. The letters in question were protest letters and they were not written at the request of the Electoral Commission which, in any case, never at all responded to either of them. This was not a hearing and it cannot rightly be perceived as answering to the imperative call of Natural Justice.
Counsel for the respondent challenged the validity of these proceedings, on the ground that the applicants had already filed a suit, in HCCC No 47 of 2003 filed on 17th January, 2003, in which the gravamen was more-orless the same as that contained in the present application. To this challenge, counsel for the applicants had responded to the effect that a Judicial Review application was a motion sui generis, and could not be said to replicate any other matter that comes as a normal suit.
Mr Kihara, in exercise of his right of reply doubted whether it would have been in order for the Electoral Commission of Kenya to be guided by provisions for internal settlement of disputes established within the structure of Ford People. He submitted that the members of the Electoral Commission were not privy to the contractual arrangements of the party and ought not to have paid heed to the same; rather the Commission should have been guided by specific and general rules of law.
Counsel for the applicants disputed the submission that orders made by this Court, if they favour the applicants, would be in vain. He questioned whether it was permissible to take the position that the decisions of the respondent, even when found to be wrong in law, would be accorded some immunity and so could not be disturbed. To support this argument, counsel cited the case, Kenya Bankers Association v Minister for Finance and Others,Miscellaneous Civil Application No 908 of 2001, a constitutional reference in which the High Court had declared some sections of an Act of Parliament null and void, notwithstanding that they had already received Presidential assent. Counsel applied this case in aid of the argument that it was improper for the respondent to reiterate that it, the respondent, was only an appendage of the Presidency, and thus should be absolved from the demands of the regular law on the theory that since the President will not be subject to an order, therefore the act of the respondent cannot be challenged. Counsel submitted that in the Bankers Associationcase, striking out parts of the Act in question was by no means taken to be an assault on the prerogative of the President; and the same principle should now apply in the present proceedings.
Mr Kihara then considered the contention made on behalf of the respondent, that this was not a fit case for the issuance of an order of certioraribecause certain elements were missing in relation to the impugned act of the Respondent, namely, a judgement, an order, a decree, or proceedings. Counsel disputed this contention, for, as he rightly stated, there must have been proceedings of the Electoral Commission of Kenya and the communication of the same to His Excellency the President. The Chairman did receive two recommendations of names purporting to be from Ford People; the Commission then rejected one of these names, and then forwarded the other for formalisation. Counsel argued that these were indeed proceedings, and they were precisely the object of the quashing orders prayed for.
On the claim by the respondent that a hearing had been accorded the applicants before the Electoral Commission took its decision, Mr Kihara submitted that a genuine hearing would require that, the moment the respondent became aware of conflicting recommendations, the party who stood to be adversely affected ought to have been apprised of the fact that there was adverse material standing against him, and should have been given a chance to state his position and make his representations. Counsel noted that the respondent had, on that occasion, failed to advert to the applicants; and no information was even availed to the applicants to the effect that there was a second nominee; and consequently there was no hearing before the Electoral Commission took its decision. Counsel did concede that a hearing in these circumstances need not bear any similarity to a court hearing, and all that was required was that the views of the applicants be sought.
Counsel for the applicants differed from the position taken by counsel for the respondent, in the interpretation of the Constitution of Ford People. He submitted that the National Executive Committee was the superior body of the Party, entrusted with responsibilities of an emergency nature. He cited in this regard the proviso to article 12 (b) which states:
“In the event of an emergency the National Execution Committee shall assume full responsibility of the Party and shall report to the next General Council meeting.”
By this provision, counsel submitted, the Party Constitution carries a safety valve, in the shape of the National Executive Committee (NEC) enjoying residual powers, and these powers are not reposed in the Party Leader. Counsel referred also to article 18, which indicates that the nomination of all candidates, going all the way down to civic candidates, is collegiate and is not left to the Party Leader or to any one individual. Counsel cited article 18(c) of the Party Constitution which thus provides:
“In special circumstances making it physically or technically impossible to hold a nomination by election as provided in (a) above, the National Executive Committee shall convene and make an appropriate decision, in the best interest of the Party.”
Counsel submitted that although the foregoing provision related specifically to the elected seats in Parliament, it made good sense to consider the empowerment there granted as extending to the identification of candidates for the nominated seats as well. The basis of this analogy regarding the party’s position in the case of the elected and the nominated seat respectively, was stated to be section 33(2) of the Constitution of Kenya. This provision reads as follows:
“The persons to be appointed shall be persons who, if they had been nominated for a parliamentary election, would be qualified to be elected as members of the National Assembly.”
To the question, “who under the Party Constitution is eligible for such party nomination?”, counsel returned the answer, “persons nominated by the National Executive Committee.”
Counsel for the applicants, in effect, attributed lack of good faith to the respondent in making the nomination which the respondent made. Mr Kihara stated the well known fact that in Kenyan constitutional life, nominations of parliamentarians for the twelve nominated seats always came after the conduct of general election; the respondent had undoubted knowledge about this, and had considerable experience in relation to the matter; the respondent did know who were the signatories of each of the political parties; and on no occasion had a nomination for a nominated parliamentary seat been conducted by a party leader. In these circumstances, counsel submitted, and with justification, the applicants did rightly entertain legitimate expectations that they would be accorded a fair opportunity in the determination of the right candidate to be presented to His Excellency the President, in the name of Ford People. This proposition, counsel submitted, is the basis of a right which should be vindicated and should inure to the benefit of the applicants.
Counsel for the respondent had doubted whether the remedy of prohibition would be available to the applicants, when the acts in question were well over and done with. Counsel for the applicants responded that prohibition as sought here was not attached to some particular act which had already occurred; rather it was prohibition against future bias or future misinterpretation of the law. The basis of this prayer for prohibition was the hope that, firstly, certiorariand then mandamuswould have been granted; and now, thirdly, prohibition if granted, would restrain the Electoral Commission from a future erratic course of action.
Mr Kihara took a different position to that of counsel for the respondent, regarding the appropriateness in these proceedings of the remedy of mandamus. Counsel noted, correctly, with respect, that this remedy is a command from the Court to a public body, to carry out its duty. Counsel submitted that section 33 of the Constitution of Kenya, which relates to the nominated seats in Parliament, at subsections (2), (3) and (5) when read together, places just one duty on the Electoral Commission – to forward to His Excellency the President the name of the legitimate nominee. It was submitted that the applicants are entitled to seek an order of mandamus, to cause the respondent to forward the legitimate name.
On the submission by counsel for the respondent that the President is not a party to the proceedings and so no order should be made that impinges on him, counsel for the applicants submitted that this point was devoid of merits. Mr Kihara submitted that if proper orders are made, the Court will have properly acquitted itself, as responsibility for implementation then passes on to others. He submitted that while section 14 of the Constitution accords the President protection from criminal and civil liability while he is exercising the functions of his office, Judicial Review proceedings fall neither in the criminal nor the civil category, and are to be regarded only as legal standards for ensuring lawful and good governance within public bodies, and as such the President is not to be expected not to appreciate the quality and the benefits to the public domain of any judicial orders such as may be made.
These proceedings turn on section 33 of the Constitution of Kenya which provides for the appointment of twelve nominated members of parliament following the conduct of parliamentary elections on a constituency basis. Although section 33 vests certain functions in the Electoral Commission of Kenya, these clearly do not include the nomination of any of the twelve candidates for appointment. This is clear from section 33(3) which provides as follows:
“The persons to be appointed shall be nominated by the parliamentary parties according to the proportion of every parliamentary party in the National Assembly......”
The role of the Electoral Commission, a constitutional organ which “shall not be subject to the direction of any other person or authority” (s 41(9) of the Constitution), in relation to the nomination of the twelve parliamentarians, is stated in section 33(4) and 33(5). By section 33(4) it is the responsibility of the Electoral Commission to calculate and determine, after every general election, the proportion of the twelve members to be nominated by each parliamentary political party. And by section 33(5),
“The names of the nominees of parliamentary parties shall be forwarded to the President through the Electoral Commission........”
Is such a public body amenable to judicial review, in a proper case? This matter was elaborately canvassed by counsel. My thinking on the question is already quite clear, from the earlier analysis in this judgement. It admits of not a scintilla of doubt, that the Electoral Commission is a central mechanism of the electoral process in a country which declares itself at the very beginning of its Constitution to be “a multiparty democratic state” (s 1A). As the conduct of national and civic elections is so very important in the exercise of democratic choice, it follows that the Electoral Commission is a public body par excellence.Its determinations and management of electoral processes, besides, place this Commission at the very forefront of public bodies entrusted with the fulfilment of the fundamental rights of the people. Therefore, ever so frequently, the Electoral Commission will have to deal with constitutional and legal issues which must constantly hold it within the purview of the review jurisdiction of the High Court. I do therefore hold that not only is the Electoral Commission of Kenya, the respondent in this case, a public body in the best sense of the word, but also that it is always amenable to Judicial Review, in a proper case. Most of the decisions of the Electoral Commission will, therefore, be justiciable and it will most of the time be required to observe Rules of Natural Justice – quite the contrary of the position taken by counsel for the respondent. Insofar as the Electoral Commission will in many cases determine questions involving the rights of individuals and of groups, including political parties, the Commission will, lots of times, have to be treated as a quasi-judicial body with all the obligations of other such bodies to act judicially. It is relevant in this regard, that section 41 of the Constitution which establishes the Commission, at sub-section (2A), thus provides:
“The Chairman and the Vice-Chairman of the Commission shall be persons who have held or are qualified to hold the office of judge of the High Court or Judge of Appeal under this Constitution.”
Now that these threshold issues have been clarified, the basic questions remaining for determination are the following:
(a) Did the Electoral Commission of Kenya, the respondent, act in excess of its powers when, in January, 2003 it forwarded the name of the Honourable Kipkalya Kiprono Kones to His Excellency the President for appointment as one of the twelve nominated Members of Parliament?
(b) When, in January, 2003 the respondent forwarded the name of the Honourable Kipkalya Kiprono Kones to the President for appointment as a nominated MP, had it received proper nomination from Ford People?
(c) Was it right in law for the respondent to engage in an interpretation and construction of the Constitution of Ford People, as a basis for forwarding any particular name to His Excellency the President for appointment against one of the nominated seats in Parliament?
(d) Was any duty placed upon the respondent to make inquiry and to give a hearing to contending aspirants, before forwarding one name to His Excellency the President for appointment as a nominated MP?
(e) Is the respondent entitled to rely on the privileges and immunities of the President, to escape liability for its failure to uphold the law governing appointment to the nominated seats of Parliament?
Answers to these foundational questions, taken together with the analysis already undertaken in this judgement, will lay the ground for appropriate responses to the prayers made by the applicants.
Responding to the first question above, it has already been stated categorically that the task of nominating candidates for appointment as nominated MPs by the President, falls not on the respondent but on the parliamentary parties. Therefore the Electoral Commission of Kenya acted in excess of its powers when it, in effect, selected the name of the Honourable Kipkalya Kiprono Kones and forwarded the same to His Excellency the President for appointment.
To questions (b) and (c) above, it is quite clear that the Electoral Commission, which is an independent constitutional body and thus was not part of the private treaty establishing Ford People, was not right to assume the role of the authoritative interpreter of the constitutive documents of that Party, and on that basis to act as if the respondent had a valid basis for picking the name of the Honourable Kipkalya Kiprono Kones and forwarding the same to His Excellency the President for appointment against one of the nominated seats in Parliament.
To question (d) above, it is evident that the Electoral Commission of Kenya, being itself not empowered to nominate candidates for appointment as nominated MPs, could not act legally when confronted with two names as came from Ford People, without substantially dispensing Natural Justice as the basis for getting to know who, truly, should be the candidate to be presented to the President for appointment as a nominated MP.
With regard to question (e) above, it is already quite clear that the Constitution expressly confers independent functions upon the respondent, and the respondent is to act on its own without direction from anyone else in the land. It is wrong in law for a body of this kind to claim that it is merely a secretariat of and an inferior organ to the President from whom it must take orders. This is in every respect a disingenuous contention with no support of legality. The effect of this holding is that this Court may make any such order against the Electoral Commission of Kenya as the Court may find appropriate, and any reference to the place of His Excellency the President in the operation of such an order is not necessary.
I have carefully considered the prayers of the applicants and in particular the manner in which they are framed. It is not possible to grant these prayers in the specific terms in which they are couched, given the precise scope of the determinations in this judgement. For instance, while clearly prayer no 1 passes in substance, it is unnecessary to quash all the consequential orders, as quite obviously, these would lack a proper foundation once the proceedings before the respondent are quashed. The limitation necessary in the case of prayer no 1 also entails that prayer no 2 cannot be granted. It is clearly not the responsibility of this Court to determine the person to be nominated for appointment to a nominated seat in Parliament; this, by the Constitution, is the responsibility of the political party, and thus the Electoral Commission of Kenya will have to initiate a fresh process as it complies with the law. As regards the third prayer, its framing is so contentious that it does not lend itself to a straight grant by the Court. It will suffice if an order is made that the respondent, in undertaking its task afresh, is to comply with the law.
Subject to the qualifications set out above, the determinations made earlier lead me to make the following orders:
1. That an order of certioraribe and is hereby issued removing into the Court and quashing the order and/or decisions or proceedings taken by the Electoral Commission of Kenya on 14th and 17th January, 2003.
2. That an order of mandamusbe and is hereby issued directing the respondent to comply with the provisions of section 33 and in particular sections 33(3) and 33(5) of the Constitution of Kenya, as well as with the general law of the land, in respect of the one nominated seat in Parliament already reserved to the parliamentary party known as Forum for the Restoration of Democracy for the People (Ford People).
3. That a certified copy of this judgement shall be provided to the Speaker of the National Assembly, to serve as a basis for any decisions such as he may consider himself empowered to make by virtue of section 44 or any other pertinent section of the Constitution of Kenya.
4. That, depending on such action as the Speaker of the National Assembly may take within his powers as set out under the Constitution of Kenya, the applicants in these proceedings shall be at liberty to make any further applications by virtue of section 44 or any other pertinent section of the Constitution.
5. That the costs of these proceedings shall be borne by the respondent..
Finally, I should like to note with appreciation the distinct professionalism, industry and courtesy of both counsel, Mr Kihara and Mr Adere, who conducted this lengthy and complex matter before this Court.
Dated and Delivered at Nairobi this 23rd day of April 2004.
J.B.OJWANG
AG. JUDGE