Republic v Independent Electoral & Boundaries Commission Dispute Resolution Committee & another; Thang'wa (Exparte); Party (Interested Party) [2022] KEHC 10043 (KLR) | Natural Justice | Esheria

Republic v Independent Electoral & Boundaries Commission Dispute Resolution Committee & another; Thang'wa (Exparte); Party (Interested Party) [2022] KEHC 10043 (KLR)

Full Case Text

Republic v Independent Electoral & Boundaries Commission Dispute Resolution Committee & another; Thang'wa (Exparte); Party (Interested Party) (Judicial Review Application 2 of 2022) [2022] KEHC 10043 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10043 (KLR)

Republic of Kenya

In the High Court at Kiambu

Judicial Review Application 2 of 2022

RB Ngetich, J

July 7, 2022

IN THE MATTER OF ARTICLE 47, 50, 75 &99 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT AND IN THE MATTER OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA

Between

Republic

Applicant

and

Independent Electoral & Boundaries Commission Dispute Resolution Committee

1st Respondent

Independent Electoral & Boundaries Commission The IEBC Kiambu Returning Officer

2nd Respondent

and

Paul Karungo Thang'wa

Exparte

and

United Democratic Alliance Party

Interested Party

Judgment

1. The Ex-parte Applicant sought leave to file this judicial review to challenge decision the 1st Respondent which is the decision organ of the 2nd Respondent while the 3rd Respondent is an employee of the 2nd Respondent. The Exparte Applicant filed a complaint dated 8th June, 2022 before the 1st Respondent. The 1st Respondnet upheld 3rd Respondent’s refusal to clear the Exparte Applicant for the Senatorial position in Kiambu County under the UDA ticket. UDA party is an interested party in this matter.

2. Reason for refusal by the 3rd Respondent to register the Exparte Applicant are written on form 16 as follows:-“Forms returned to the candidate due to the provisions of Article 75 and the communication by the Commission dated 4th June, 2002 by press release.”

3. Grounds for the complaint before the 1st Respondent were as follows:-“the Complainant is aggrieved by the Respondent’s refusal to clear and register him as a candidate in the forthcoming elections pursuant to Article 88(4) (f) of the Constitution and Section 4 (f) of the Independent Electoral and Boundaries Commission Act. The reason advanced by the Respondent is that the Complainant stands disqualified from contesting due to an alleged impeachment/removal from office.”

4. The 1st Respondent in its determination upheld the 3rd Respondent's decision and cited the Applicant’s ineligibility to hold public office during a purported removal from the office and the Applicant's presentation of the nomination papers outside the gazetted timelines.

5. Aggrieved by the decision of the 1st Respondent, the Ex-parte Applicant filed this matter in Milimani High Court. The same was transferred to this court for determination in view of territorial jurisdiction.

6. The Exparte Applicant filed chamber summons application dated 21st June, 2022 mainly seeks to leave to file prerogative orders of certiorari, mandamus and prohibition against the respondents

7. The matter was placed before me on 23rd June, 2022 and I directed that the respondents be served for further directions on 30th June, 2021. Following the directions given,the Exparte Applicant filed another application under certificate seeking variation of date for direction on ground that the issues touch on a pre-election dispute subject to a strict electoral calendar and constitutional timelines as set by the 2nd Respondent for the registration, gazettement and printing of ballot papers for candidates who intend to participate in the forthcoming August 9th 2022 elections.

8. Further that the exercise is about to commence on 2nd July, 2022 and if the court fails to review the orders issued on 23rd June 2022, the Exparte Applicant will be locked out of the August 9th 2022 general election and urged this court to dispense this matter expeditious as it is an elelction dispute.

9. On 27th June, 2022 the Exparte Applicant was granted leave to apply for judicial review proceedings of mandamus and prohibition and directed to file substantive motion before the close of business on 27th June 2022 , the Respondents to file their responses before the close of business on 28th June, 2022 and highlighting of written submissins on 29th June, 2022.

10. In response, the Applicant filed a supplementary affidavit on 29th June, 2022 in which he attached the proceedings in DRC No. 130 of 2022 to reinforce the contention that the 1st Respondent exceeded its mandate by framing its own issues for determination and making findings on issues not submitted nor argued by the parties and avered that this court is mandated to exercise its supervisory jurisdiction and review the decision of the Respondent and undertake a merit analysis.

11. On 29th June 2022 the Respondents filed written submissions and replying affidavit sworn by Chrispine Owiye the 2nd Respondent's Directorate of Legal affairs on behalf of the Respondents. The interested party filed replying affidavit on 29th June 2022 sworn by Anthony Mwaura, the National Elections Board Chairman of the Interested Party and the Advocate submitted orally.

Response by Respondents 12. In opposing the application the Respondents averred that the application invites merit review of the 1st Respondent’s decision, an invitation which is beyond the scope of the judicial review and the allegation by the Applicant of the violation of his rights to natural justice based on the composition of the 1st Respondent are res judicata.

13. The Respondents further averred that the allegation of irrationality, illegality, and unreasonableness has failed to prove that the 1st Respondent was not empowered to make decisions, exceeded her powers, exercised her discretion improperly, did not give reasons for her decisions and the decision arrived at by the 1stRespondent was illegal and further,the 1st Respondent's decision complied with Article 88(4) and Article 47 of the Constitution, Section 74 of the Elections Act, 2011 Rules of Procedure on Settlement of Disputes.

Response by Interested Party 14. The interested party averred that the Applicant was unopposed and declared by the interested party nominee to contest for the position of member of Senator, Kiambu County and was issued with a nomination certificate.

15. And further averred that the decision by the 1st Respondent in Complaint No. 130 of 2022 was a misapprehension of the factual circumstances as it failed to consider the weighty evidence presented before it. The interested party contends that the Applicant was previously a member of the County Executive Committee for Youth Affairs, Sports, ICT and Communication in Kiambu County and he was not impeached from his office as per Section 40 (6) (b) of the County Government Act.

Applicant's Submissions 16. Counsel for the Applicant filed submissions on 29th June, 2022 and submitted that the dispute resolution mechanism establishes the Rules of Procedure on Settlement of Disputes and a complaint regarding nomination is initiated by a third party objecting to the nomination of a particular candidate as provided by Rule 9 of the Rules which provides:(1)Any person objecting to the nomination of a candidate may file a complaint with the commission on any of the following grounds:(a)That the candidate is not qualified to be elected under any law,(b)That the candidate does not have all the qualifications required under any law;(c)That the candidate was convicted of an election offence at any time material to the nomination;

17. Counsel for the Applicant submitted that there was no complaint lodged with the 2nd Respondent challenging the Applicant nomination and the basis for non-clearance was based on a communiqué issued by the 1st Respondent on the 4th of June, 2022; thus the 1st Respondent had already decided on the Applicant’s eligibility to vie and disqualify the Applicant before he submitted his nomination papers.

18. And further submitted that the committee was sitting as a judge on a matter they had already decided which amounted to biasness, a clear conflict of interest, unreasonable and a violation of applicant rights to natural justice and Cited the case ofRepublic v Board Governors, our lady of victory girls School Kapnyeberai & Anor Ex-parte Korir Kipyego Joseph & Anor (2015) eKLR, where the High Court cited with approval Halsbury's laws of England, (Administrative law) Fourth Edition, 2001 Re-issue at page 218 paragraph 95 which defines natural justice as follows:-“natural justice comprises two basic rules, first that no man is to be a Judge in his own cause (nemojudex in Caucasus), and second that no one is to be condemned unheard (audialterampertem). These rules are concerned with the manner in which the decision is taken rather than with whether or not the decision is correct. The rules of natural justice must be observed by courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, save where their application is excluded expressly or necessary implication, or by reason of the other special circumstances.”

19. Counsel for the Applicant further submitted that the 1st Respondent’s decision violated the Applicant’s right to be heard, and the 2nd Respondent's decision to disqualify the applicant from vying was done with full knowledge of the existence of Petition No. E234 of 20222,Kelvin Njui Wangari vs Paul Karungo Thang’wa & Othersin court challenging the Applicant’s eligibility to vie thus the 2nd Respondent violated the Applicant's rights to fair administrative action and fair hearing as enshrined in Article 88 (5) of the Constitution of Kenya.

20. On the issue of irrationality, unreasonableness and illegality, counsel submitted that the decision of the 1st Respondent was in total disregard of its statutory and legal mandate and in excess of its jurisdiction; that the issue of late submission of nomination papers was not a ground raised by the 3rd Respondent on form 16 and that the 1st Respondent framed its own issues for determination and proceeded to make findings on issues not submitted.

21. On the issue of removal from office, counsel for the Applicant submitted that the Applicant was never impeached from office and thus the disqualification of the Applicant from vying on grounds of impeachment is illegal, irrational and unreasonable.

22. Counsel further submitted that Applicant’s impeachment from office as per Section 40 of the County Government Act was not complied with as the then Governor declined to dismiss the Applicant, on account of a subsisting court order, the Applicant ceased to hold office pursuant to Article 179(7) of the Constitution which provide as follows:-“if a vacancy arises in the office of the County Governor, the members of the county executive committee appointed under clause (2)(b) cease to hold office.”

23. Counsel submitted that the Applicant meets the qualification of Article 99 of the Constitution of Kenya to present himself as a candidate for the Member of Senate of Kiambu County and hold office and is protected by Article 99 (3) of the Constitution as the presence of a notice of appeal entitles a person to exhaust all mechanisms of the appeal before disqualification from office, thus the 1st Respondent acted irrationally and unreasonably by disqualifying the applicant from vying.

24. In conclusion, counsel for the Exparte Applicant submitted that the conditions for granting judicial review orders have been satisfied and urged the court to grant the reliefs sought.

Respondent's Submissions 25. Counsel for the Respondents submitted that the only issue for determination is whether the application is merited and submitted that the court’s jurisdiction when faced with applications for judicial review is settled;that the court is tasked with examining the process of arriving at the impugned decisions and not the merits and cited the case in Peninah Nadoko Kiliswa vs Independent electoral & boundaries Commission (IEBC) & 2 others (2015)eKLR where the court held as follows:-“the well-recognized principle in such cased, is that the court’s target in judicial review is always no more than the process which conveyed the ultimate decision arrived at. It is not the merits of the decision, but the compliance of the decision-making process with certain established criteria of fairness. Hence, an applicant making a case for judicial review had to show that the decision in question was illegal, irrational or procedurally defective.”

26. Counsel submitted that the allegation by the ex- parte Applicant that his rights to natural justice were violated by the 1st Respondent adjudicating on her own cause should be disregarded at the first instance as the same is res judicata and relied on the case of Diana Kethi Kilonzo & Anor vs Independent electoral & boundaries commission & 10 others (2013) eKLR where the court held as follows:-“consideration of whether or not the committee has violated the principle that no one shall be a judge in his own cause, must start with a consideration of the constitutional provisions with regard to the powers, function and mandate of the IEBC. We have already set out elsewhere in this judgment the provisions of Article 88(4) (e). We take the view that in enacting the above provisions, the clear intention of the people of Kenya was that all disputes relating to elections, except elections petitions and disputes arising after the declaration of results, and certainly all disputes involving or related to the nomination of persons to contesting elections for various offices established under the constitution, would fall within the exclusive mandate of the IEBC.In our view, this mandate to adjudicate disputes such as the one currently before us is a mandate ordained by the constitution. Provided that it is exercised in accordance with the constitution and the law as Article 88(5) requires, it cannot be said to be a violation of Ms. Kilonzo’s right under Article 47 and 50(1) or to be a violation of the principle that no one shall be a judge in his own cause.Similarly, the functions of the committee and the returning officer, and their placement within the IEBC, are constitutionally and statutorily underpinned. The Act, the Regulations and the Rules on the basis of which the Respondents have performed their functions are also constitutionally and statutorily underpinned. To impugn them is, in effect, to ask us to find fault with their constitutional basis.Ms Kilonzo has urged us to find, in effect, that the exercise by the committee of powers donated to it by the Constitution violates her rights under Articles 47 and 50. In so doing, she is effectively posing a challenge to the validity of Article 88(4) (e). This, however, is not something that we can entertain for Article 2 insulates the Constitution against challenges such as the one currently before us by providing Article 2(3) as follows:(3)the validity or legality of this Constitution is not subject to challenge by or before any court or other state organ “

27. Counsel further submitted that the issue of the Applicant vis-a-vis rules of natural justice is settled with finality since the Applicant's decision is a judgment in rem and cited the case of Abukar G Mohamed vs Independent electoral and boundaries commission (2017) eKLR where Odunga J. cited with approval Pattni vs Ali & Anor (isle of Mann Staff of Government Division) (2006) UKPC 51 in which reliance was made to Jowitt’s Dictionary of English Law (2nd Edition) P. 1025-6 to the effect that:“a judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is also declared by the adjudication.. so a declaration of illegitimacy is in effect a judgment in rem.”

28. On the issue of illegality, counsel for the Respondents submitted that 1st Respondent acted within her mandate under Rule 14 of the Rules of Procedure on Settlement of Disputes, the decision was within the scope of the material before her. Counsel contends the issue of time of submitting the nomination papers was also an issue before the 1st Respondent.

29. He further submitted that the Applicant has not presented any persuasive material before the court to the effect that a different tribunal faced with the same facts would have decided differently, as laid down in Republic v Public Procurement Administrative Review Board & 2 Others Ex-parte Rongo University where the court held as follows:-“the following propositions can offer guidance on what constitutes unreasonableness:-(a)Wednesbury unreasonableness is the reflex of the implied legislative intention that statutory powers be exercised reasonably,(b)This is the ground of review that will be made out when the court concludes that the decisions fell outside the area of decision freedom which that legislative assumption authorizes, that is outside the range within which reasonableness minds may differ;(c)The test of unreasonableness is whether the decision was reasonably open to the decision-maker in the circumstances of the case. To say that the decision was not reasonably open” is the same as saying that no reasonable maker could have made it;”

30. In conclusion, counsel for the Respondents submitted that the Applicant has failed to prove he was not accorded any fairness and urged to dismiss the application for lack of merit with costs.

31. At the hearing, counsel did highlight their submissions.

Highlighting of Submissions by Counsel for the Ex-parte Applicant 32. Counsel for the Applicant in highlighting submissions submitted that the Exparte Applicant who is a Senate Aspirant nominated by the interested party was denied registration based on the communique by the IEBC Chairman on 4th June 2022 attached on page 49 of the application when he presented his papers to the 3rd Respondent on 17th June 2022; and argued that the Ex-parte Applicant was disqualified before he presented his documents to IEBC without being given an opportunity to be heard. He submitted that there was no complainant in the matter and stated that IEBC was the complainant, prosecutor and the Judge.

33. Counsel argued that the Dispute Resolution Committee (1st Respondent)constitute of members, two of whom are Commissioners of IEBC, the 1st Respondent upheld the 2nd Respondent's decisions to disqualify the Ex-parte Applicant from vying for the Kiambu Senatorial seat.

34. He further submitted that the decision of the 1st Respondent was vitiated by the infringements of the Applicant's rights to natural justice as enshrined in Rule 9 of the Rules of Procedure of Settlement of the Dispute before the 2nd Respondent. The IEBC through returning officer was the complainant and the dispute referred to the DRC the 1st respondent which is an entity of the Complainant and the rules of natural justice was not observed.

35. On the issue of irrational, unreasonable, and illegality, counsel argued the 1st Respondent took into consideration extraneous matters, and it decided on the allegation that the Ex-parte Applicant submitted the clearance papers outside the gazetted timelines yet it was not the reason the 3rd Respondent declined to register the Exparte Applicant thus the Decision of DRC is unreasonable.

36. Counsel urged the court to look at the merit of the decision of the 3rd Respondent and evaluate the circumstances that led to the disqualification of the Ex-parte Applicant. He submitted that the Applicant has never been removed from office; that he remained in office and discharged his duties. Thus the reason not to clear the Ex-parte Applicant on basis of removal from office is without legal foundation, irrational and should be struck out.

37. Counsel urged the court to issue a mandamus order to the 2nd Respondent to order it to proceed to register the Ex-parte Applicant as an aspirant for Senatorial seat under the UDA ticket and urged this court in safeguarding the misuse of public resources to put on hold printing of ballot papers regarding Kiambu County.

Highlighted submissions by interested party 38. Counsel for the Interested party informed the court that he is not opposed to the application by the Ex-parte Applicant and in response has filed a replying affidavit sworn by Anthony Mwaura on 29th June, 2022.

39. He raised two issues in support of the application. First being the decision of 1st and 2nd Respondent barred the Ex-parte Applicant from seeking the elective post yet he was unopposed and there was no dispute in place until the decision of the 3rd Respondent.

40. He submitted that the decision of the 2nd Respondent is based on a conclusion that the Applicant was impeached yet no resolution was placed before the 1st and 2nd Respondent by the County Assembly in respect to the impeachment of the Ex-parte Applicant as per Section 40(6)(b) of the County Government Act; that the 1st and 2nd Respondent failed to conduct investigations to ascertain the true position of the Ex-parte Applicant.

41. He submitted that before the removal of the Ex-parte Applicant, the then Governor was impeached from office and thus the Ex-parte Applicant ceased to hold office by operation of the law and there was therefore no basis for the 3rd Respondent to make such a unilateral decision which the 1st Respondent relied on.

42. He further submitted that the decision relied on by the 2nd Respondent was in the Employment Court but the dispute did not interrogate on the impeachment process as it was only concerned with how the Ex-parte Applicant was removed from office and submitted that there was no finding that the Exparte Applicant was removed from office.

Highlight of submissions by counsel for the respondent 43. While highlighting written submissions, counsel for the Respondents submitted that the Exparte Applicant has failed to attach the affidavit of the 3rd Respondent placed before the 1st Respondent for determination of the dispute. The affidavit canvasses the issue of timelines within which nomination papers were to be submitted. Thus counsel for the Ex-parte Applicant chooses to rely on the oral evidence of the 3rd Respondent in cross-examination in place of the affidavit on record.

44. He submitted that presentation of nomination papers for the Senatorial candidature expired on 30th May, 2022 and a gazette notice was in place, and there were briefing sessions at Kiambu Institute of Technology in which Ex-parte Applicant failed to attend.

45. He submitted that the 1st Respondent addressed the issues before it. The Applicant submitted papers weeks after the expiration of the gazetted timelines and the timelines are not subject to any extension and thus the Committee cannot be accused of irrational decisions.

46. Counsel further argued that the Judge in the ELRC dismissed the petition on the basis it was unmeritorious and the application for contempt was never pursued and the decision of the County Assembly was therefore not disturbed and the same remained in place. He further submitted that the decision was by the majority and when placed before the then- Kiambu Governor he declined to remove the CEC; that the Governor lacked the mandate and the court had already determined the case.

47. Counsel further submitted that the fact that the Applicant continued to draw a salary until when the Governor was impeached is not sufficient to prove he was not impeached.

48. He submitted that the 2nd Respondent is mandated by Article 88 of the Constitution to deal with elections disputes and pre-elections disputes and contend the judgment by 1st and 3rd Respondent was in rem and thus binding upon the Ex-parte Applicant.

49. Counsel for the Respondents further submitted that in judicial review application, the courts are not required to deal with the merit of the decision but compliance with the decision-making process that shows the decision is illegal and irrational and in this case, the applicant has not established any unfairness by the 1st and 3rd Respondent when adjudicating the dispute.

50. Counsel submitted that in Petition E0234 of 2022 Kelvin Njui Wangare Vs EACC and IEBE & 4 Others, IEBC was prohibited from clearing the Ex-parte Applicant and the order was discharged by three Judge bench in consolidated Petitions E090/22 with a rider that the order should not be construed as directing IEBC to accept or reject any of the nomination papers of the candidates subject to that petition.

51. Counsel submitted that the 2nd Respondent is not to be faulted for the failure of the applicant to submit nomination papers and emphasized that the applicant never submitted his nomination papers before the gazetted timelines as he submitted the nomination papers on 7th June, 2022 outside the gazetted timelines and timeline is ordained in law and cannot be extended nor is it negotiable.

52. On the Exparte Applicant’s prayer for an order of prohibition to bar the 2nd Respondent from printing ballot papers,counsel for the Respondnet submitted that it is a factual matter that ought to have been raised in the application and he is not in a position to know to what extent the 2nd Respondent has gone in preparation to print ballot papers.

Rejoinder by Counsel for the Exparte Applicant 53. In rejoinder, counsel for the Ex-parte Applicant submitted that attached to supplementary affidavit are the proceedings of the 3rd Respondent, in which the 3rd Respondent was categorical on the issue beforehand on the Applicant’s qualification to hold office and referred the Applicant to the 1st Respondent for determination.

54. He further submitted that clearance of Senatorial candidates was between 1st May, 2022 to 30th May, 2022, a period when petition E 234 of 2022 had barred the 2nd Respondent from clearing the Applicant from vying for an elective post which orders were vacated on 6th June, 2022 and presentation of the nomination papers by the Ex-parte Applicant before the orders being vacated would have amounted to disobedience of the court.

55. He argued that on 7th June, 2022 the County Returning Officer asked the Exparte Applicant to clear with the Headquarters first but when he went to submit his papers at KIST, he declined to clear him under Article 75. He further submitted that the 1st Respondent was sitting as an Appeal Court of the decision by the 3rd Respondent and it should not have adjudicated on extraneous matters not raised by the 3rd Respondent and further,the judgment of Justice Rika of ELRC did not bar the Applicant from holding office.

56. He argued that Article 99 (3) of the Constitution of Kenya 2010 saves persons with pending appeals to run for office and he appreciates the mandate of IEBC under Article 88 but argued that the disputes to be adjudicated are under Rule 9 of the IEBC Rules and Procedure which provides that a complaint should be from any other party and not where IEBC is the complainant and relied on the case of Keith Kilonzo.

57. He reiterated that the decision by the 1st Respondent was illegal, irrational and procedural impropriety and urged this court to allow the Notice of Motion dated 27th June, 2022 by granting the orders of quashing the decision of the committee on 19th June, 2022 in complaint 130 of 2022 and order the 2nd Respondent to clear/register the applicant as an aspirant.,

Analysis and Determination 58. A party seeking remedies in judicial review must show that the decision was illegal, irrational and procedural unfair. The Applicant moved the court pursuant to Articles 47, 50, 75 and 99 of the Constitution of Kenya 2010. He contends violation of his constitutional rights.

59. It is not disputed the Applicant was a County Executive Committee member for Kiambu County. It is not also disputed that on 29th October 2019 Kiambu County Assembly passed a resolution by to impeach or remove the Exparte Applicant but on being placed before the then Governor, he declined to dismiss the Exparte Applicant from office on account of stay orders issued by Emplyment and Labour Relations Court (ELRC). The applicant’s argument is that he remained in office until when he ceased to hold office by operation of law Article 179 (7 ) of the Constitution following impeachment of the Governor.

60. I have perused and considered pleadings and submissions filed by parties herein and arguments by cousels while highlighting their written submissions and find the following as isssues for determinationI.Whether the Exparte applicant’s rights to natural justice were violated.II.Whether the decision by the 1st Respondent is illegal,irrational,unreasonable and procedurally defective.III.Whether Exparte Applicant is entitled to reliefs sought

I. Whether the Exparte Applicant’s rights to natural justice were violated 61. The Exparte Applicant argued that in view of composition of the 1st Respondent being one member appointed by the 2nd Respondent and the other two being Commissioners of the 2nd Respondent the dispute was determined by a party which communicated to the 3rd Respondent to deny the Exparte Applicant registration on ground of disqualification under Article 75 of the Constitution; that the 1st Respondent was a Judge in her own cause therefore violating the Exparte Applicants right to Natural Justice .

62. This matter was however settled in the case of Diana Kethi Kilonzo & another v Independent Electoral & Boundaries Commission & 10 others [2013] eKLR Where the bench stated as follows:-‘’A consideration of whether or not the Committee has violated the principle that no one shall be a judge in his own cause, must start with a consideration of the constitutional provisions with regard to the powers, function and mandate of the IEBC. We have already set out elsewhere in this judgment the provisions of Article 88(4)(e). We take the view that in enacting the above provisions, the clear intention of the people of Kenya was that all disputes relating to elections, except election petitions and disputes arising after the declaration of results, and certainly all disputes involving or related to nomination of persons to contesting elections for various offices established under the Constitution, would fall within the exclusive mandate of the IEBC.In our view, this mandate to adjudicate disputes such as the one currently before us is a mandate ordained by the Constitution. Provided that it is exercised in accordance with the Constitution and the law as Article 88(5) requires, it cannot be said to be a violation of Ms. Kilonzo’s rights under Articles 47 and 50(1) or to be a violation of the principle that no one shall be a judge in his own cause.Similarly, the functions of the Committee and the Returning Officer, and their placement within the IEBC, are constitutionally and statutorily underpinned. The Act, the Regulations and the Rules on the basis of which the Respondents have performed their functions are also constitutionally and statutorily underpinned. To impugn them is, in effect, to ask us to find fault with their constitutional basis.”

63. From the foregoing, Article 88(4) (e) of the Constitution of Kenya 2010 mandates IEBC to settle electoral disputes relating to or arising from nominations but excluding disputes arising after the declaration of the results.

64. The 1st Respondent is therefore mandated to hear and determine disputes arising from registration/clearing of candidates. I agree with counsel for the Respondent that the composition of the committees cannot be faulted.

65. However on the issue as to whether the Exparte Applicant was granted an opportunity to be heard, 3rd Respondent confirmed that he declined to clear the Exparte Applicant due to disqualification under Article 75 of Constitution. The issue on timelines had not been raised by Exparte Applicant before the committee. He was not therefore accorded an opportunity to be heard on it as it was not a ground for filing the complaint. On that aspect, the Expate Applicant’s right to fair hearing was therefore violated.

(II) Whether the Decision by the 1st Respondent is illegal,irrational and Procedurally Unfair. 66. The Exparte Applicant argued that the 2nd Respondent took into consideration extraneous matter as the reason given by the 3rd Respondent for refusing to clear/register the Exparte Applicant was disqualification under Article 75 of the Constitution but the committee bassed its decision of upholding 3rd Respondent’s on timelines set by the 2nd Respondent. From the proceedings before the tribunal, the 3rd Respondent confirmed that he declined to register the Exparte Applicant on the basis of communique from the IEBC Chairman which indicated that those who have been removed from office are disqualified from vying for elective positions. On the forms rejected it is indicated disqualified under Article 75 of the Constitution

67. On timelines, I have perused the order issued on 6th June 2022 by three Judge Bench and note that the Bench discharged the prohibition order of 25th May 2022 issued by Justice Mrima which prohibited the 2nd Respondent (IEBC) from clearing the Exparte Applicant herein for any elective post as at 9th August, 2022 general election and or printing any ballot papers bearing his name and or symbol pending further orders.

68. The date indicated by the 3rd Respondent while refusal to clear the Exparte Applicant is 7th June 2022 which show that he presented his papers for clearance a day after the lifting of prohibitory order. I also note from the Whatsapp communication between the Exparte Applicant and the 3rd Respondent that the 3rd Respondent was aware of the order prohibiting 2nd Respondent from clearing the Exparte Applicant as candidate. In the Whatsapp communication, 3rd Respondent tells the Exparte Applicant to clear with Head quaters.

69. The above may explain why the 3rd Respondent did not indicate timelines as reason for declining to register the Exparte Applicant in the forms presented .

70. And if reason for refusal to clear Exparte Applicant was disqualification under article 75 of the Constitution, it provides that a person who has been dismissed or otherwise removed from office for contravention of provisions specified in clause ( 2 ) is disqualified from holding any other state office.

71. It is not however disputed that the then Governor did not dismiss the Exparte Applicant following resolution by the County Assembly for him to be removed or dismissed. The Exparte Applicant ceased to hold office following impeachment of the Governor in compliance with Article 179(7) of the Constitution which provide that if a vacancy arises in the office of County Governor the members of the County Executive Committee appointed under clause ( 2) (b ) cease to hold office. From the foregoing it would not be right to conclude that the Exparte Applicant was removed from office.

72. But even if one was to consider that the Exparte Applicant was removed from office, documents have been attached to supporting affidavit which confirm that the Exparte Applicant filed appeal way before that communique was issued by the Chairman IEBC and Article 99 (3 )provide that a person is not disqualified under clause ( 2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.

73. I agree with counsel for that the Exparte Applicant that he is entitled to benefit from Article 99 of the Constitution which gives a party opportunity to exhaiust appeal process if appeal has been filed challenging decision that disqualify the party from vying for a political postion.

74. On whether the 1st Respondent acted wrongly in determination of the dispute without any complaint being made concerning nomination of Exparte applicant, it is not disputed that no independent party raised a complaint concerning nomination of Exparte Applicant. This was confirmed by the interested party. The committee was however moved by the Exparte Applicant to determine the dispute on 3rd Respondents refusal to clear him. It is within the 1st Respondent’s mandate to determine pre-election disputes as mandated by the Constitution.

75. However in my view,the 1st Respondent should have limited itself to reason advanced for refusal by 3rd Respondent to clear the Exparte Applicant and if any other issue was to arise which required their determination, then the Exparte Applicant should have been accorded an opportunity to be heard on the issue.

76. Having found that an order of prohibition was issued on 25th May, 2022 and in view of the fact that two committee members are commissioners of the 2nd Respondent, it must have been within their knowledge that that there existed prohibition order which prevented the Exparte Applicant from complying with timelines set; and if not,had they given the Exparte Applicant an opportunity to be heard on the new issue raised before the committee, I believe the Exparte Applicant would have explained reason for failing to present his papers within timelines set by the 2nd Respondent. From the foregoing, I find that the 1st Respondent acted unreasobaly and unfairly in basing their decision on the said timelines.

(III ) Whether Exparte Applicant is entitled to reliefs sought 77. In view of my analysis under (II) above, I find the Applicant has demonstrated that the 1st Respondent’s decision to uphold the 1st Respondent refusal to clear/ register the Exparte Applicant as candidate for Senate position in Kiambu County was irrational, unreasoble and unfair; the Exparte Applicant is therefore entitled to prayers sought.

78. Final Orders(1)I hereby quash the decision of 1st Respondent delivered on 19th June 2022 in complaint No.130 of 2022 by the 1st Respondent which upheld refusal by the 3rd Respondent to register the Exparte Applicant as candidate for position of Senate Kiambu County.(2)I hereby issue order of mandamus compelling the 2nd Respondent by itself and/or its agents to clear and to register the Exparte Applicant as Kiambu County Senatorial candidate in the general elections scheduled for 9th August, 2022. (3)No orders as to costs.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBUTHIS 7THDAY OF JULY, 2022. .............................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court AssistantMr. Ngaya Mbugua for Exparte/ApplicantMr. Ochieng & Charles Mwongela for Respondent