Republic v Independent Electoral and Boundaries & Party Of National Unity Exparte Abdia Hassan [2017] KEHC 888 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  561 OF 2017

IN THE MATTER OF AN APPLICATION BY ABDIA HASSAN MAHAT ADEY HUSSEIN GULIYE AND FATUMA ADAN NOOR FOR ORDERS OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER OF ARTICLES 87, 88(5), 90 AND 177 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE ELECTIONS ACT NO.  24 OF 2011

AND

IN THE MATTER OF INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT 2011

AND

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

AND

IN THE MATTER  OF THE LIST OF  NOMINATED  MEMBERS OF THE COUNTY  ASSEMBLY  GENDER  TOP UP  AND  MARGINALIZED  LIST FOR WAJIR  COUNTY

BETWEEN

REPUBLIC …………………............................................................APPLICANT

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES……….RESPONDENT

PARTY OF NATIONAL UNITY ……………………...INTERESTED PARTY

ABDIA HASSAN…………………………..................EXPARTE APPLICANT

RULING

1. By an application dated 11th September 2017, the exparte  applicants  seek from  this court  leave to apply for  Judicial Review orders  of mandamus  to compel  the gazettment  of the applicants Abdia  Hassan, Addey Hussein Guliye  and Fatuma  Adan Noor  as nominated  members of the party of National Unity (PNU) for the gender top up members  with respect  to the 1st and 2nd applicants and the 3rd applicant as the marginalized  member of the County Assembly  of Wajir.

2. The application which is brought under the provisions of Section 8 and  9  of the Law Reform Act, Order  53  Rules  1,2,3 and  4  of the Civil Procedure  Rules, 2010 citing Articles 87,88(5),90 and 177 of the Constitution, the Elections Act and IEBC Act, the Elections (Party Primaries and Party Lists) Regulations, 2017 is predicated   on the grounds  contained in the statutory statement  and verifying   affidavits  sworn by the  three exparte  applicants Abdia Hassan  Mahat, Adey Husseing  Guliye and Fatuma Noor all sworn separately on  11th September  2017.

3. According to the exparte applicants, the Party of National Unity(PNU) won three ( 3) seats of the County Assembly  of Wajir  during the  8th August 2017 elections and that as  a result, the party  was entitled to one  marginalized  member seat  and two gender top up member seats to the County Assembly proportionately.

4. That comparably, Amani  National Congress (ANC) party got  two(2)  elected seats (1Narc-K) got three (3) elected seats, ODM got three seats party for Development and Reforms (PDR) got six(6) elected seats and Wiper Party (WP) got  three(3) seats.

5. That  the respondent IEBC in compliance  with Articles 87, 88(5), 90 and  177 of the Constitution; Sections  4(2)  of the IEBC Act; Sections  34, 35, 36  and  37  of the Elections  Act; Regulation 54,55 and  56  of the Election  ( General) Regulations, 2012  and Regulation 26  of the Election (Party  Primaries  and Party Lists) Regulations, 2017  allocated Gender top up  seats  as  follows:

Jubilee party – 3 seats

PDR - 2 seats

Nark- K – 2 seats

WP – 2 seats

ODM – 2 seats

ANC - 1 seat

KANU- 1 seat.

All for gender top up.

6. This was as per the annexed Gazette notice No. 8380 special issue published on 28th August, 2017 VOL CXIX  No. 124.

7. It is alleged that  nonetheless, the  Gazette Notice  failed to  allocate  any Gender  top up or marginalized  member seat and  gender top up slots to the party of National Unity (PNU) the  interested  party herein.

8. It is alleged that on  30th August  2017  the interested party (PNU)  wrote a letter  to the respondent  IEBC  raising  the  issue of discrimination in the manner in which the  proportionality  principle  was applied in the allocation of seats.

9. The applicant claims that they were nominated by their party (PNU) as a gender top up ( for 1st and 2nd applicant) and marginalized  for  Wajir County.

10. That despite  their nominations, the  IEBC has refused and failed to gazette them and that even the corrigenda Gazette notice published on 6th September,  2017, No. 8752  VOL CXIX No. 131  on 6th September  2017  No. 8380  only amended the Kanu gender top up names without any inclusion of the applicants despite the said notification by the interested party(PNU).

11. The applicants claim that their legitimate expectation to have their names reflected in the addendum was violated.

12. That subsequently, members of the County Assembly were sworn in on 7th September 2017 leaving out the applicants herein.

13. According to the applicants, the 1st respondent IEBC while supervising  the election of members to special  seats ought to have been done on the basis of  proportional  representation those nominated  by  Political Parties  would be in  proportion  to the seats  received  in that election  in that County by each  political  party  hence it  was  legitimately  expected that the names that would  be gazette would  have  reflected  the same position.

14. That like  the other Political  Parties, the interested  party would   be entitled  to one  marginalized  member seat  and two gender  top up member seats  to the County Assembly  proportionately.

15. The applicants  claim that  despite  complainants s to IEBC, it has  refused to  respond or  to gazette the  applicants hence they  should  be compelled d to gazette  the  applicant  as such.

16. The respondent filed a notice of  preliminary objection  dated  26th September  2017  through  the  firm of  Ogle  & Company  Advocates contending that this court  has no jurisdiction  to hear and determine this application as well as the intended  substantive  application  for Judicial Review  in view of  Article  88 (4)  of the Constitution, Sections  74(1)  and  75  1A of the Elections  Act, 2011.

17. It is further contended that the procedure for removal of member of County Assembly and or otherwise effecting changes in the membership of the County Assembly has not been invoked by the applicants.

18. That the  applicant did not  follow the right procedure  for  settling nomination disputes which is the IEBC Disputes  Resolution Committee as espoused  in Article  88(4)( c )  of the Constitution, and Section  74(1) of the Elections Act, 2011.

19. Further, that the respondent has gazetted all the nominated  members of the County Assembly of Wajir as per the requirements of the Constitution of Kenya, 2010 and all  enabling  laws hence  it has no  extra slots  to give the exparte   applicants herein.  The respondent, it was contended, can only by law gazette a member of County Assembly if there is vacancy.

20. It was further contended that  there is pending a similar  matter  namely: Maryam Abdi Mohamed  versus IEBC  and another, Election  Petition  No. 20  of  2017  with the  same  facts concerning  the allocation of nomination slots to the interested party in this application to Wajir  County Assembly.

21. It  was therefore  contended that  the  application for  mandamus  is incompetent and legally untenable  and ought  to be  dismissal  with costs.

22. The exparte applicant filed grounds of opposition to the preliminary objection notice.  It is dated 4th October 2017 contending that the court has jurisdiction to hear and determine  the exparte applicant’s application; that the notice of preliminary  objection is an abuse  of the  court process.

23. Parties’  advocates  argued the application orally in court  on 8th November  2017 with Mr Wangila  counsel for  the applicant  submitting that the respondent’s  failure to gazette the applicants as  Member  of  County Assembly for  Wajir  County Assembly   was an anomaly.  That the  IEBC  overlooked the  issues  and  therefore failure to gazette the applicants amounted to discrimination  contrary to Article 27  of the Constitution.

24. It was submitted that PNU is entitled to the three seats  as it had won many seats but that the IEBC overlooked  the party nomination list hence it failed to fairly distribute the seats among political parties noting that PNU had performed well. Counsel maintained that this court is the proper forum for ventilating grievances because after gazetting the nominees, IEBC lacks the requisite jurisdiction to entertain the dispute.

25. That IEBC’s mandate under Sections 74 of the Elections Act and Article 88 of the Constitution is a time bound process and that after nomination and gazettment only courts have jurisdiction to determine the disputes.

26. Counsel submitted generally that the authorities relied on by the respondent in the preliminary objection are distinguishable from this case because the IEBC was given a list by the PNU but omitted to gazette.

27. In opposing  the chamber  summons for  leave, the  respondent’s   counsel Mr Ibrahim submitted relying on the Preliminary objection maintaining that this court’s jurisdiction is ousted because the applicants did not  exhaust  the available  Dispute  Resolution Mechanisms under Article 88(4)(e) and Section 74(1)  of the Elections Act.

28. That Election Petition No. 20/2017 involves same issues and facts. Counsel relied on the decision in Miscellaneous Application 83/2015 Isaiah Ndichu Ndirangu to advance the argument that the forum for ventilation of disputes of this nature is before the Elections Act, section 75(1) (a).

29. Further reliance was placed on Petition 147/2013  National Gender and Equality Commission vs IEBC & others  where the court  held that  any challenge  after gazettement of nominees and as to the composition of  membership of  County Assembly  can only  be before  an Elections  Court. In this case, a Resident Magistrate’s Court who is designated as such and gazetted by the Chief Justice can hear and determine an election petition for member of County Assembly.

30. It  was  also submitted that in  the Supreme Court  Petition 1  of  2015 Moses Mwicigi & Others vs IEBC & Others, the Supreme Court held  that only  the elections  court can  disturb   the status  quo  in accordance  with Section  75  of the Elections  Act.

31. Relying  on Petition 497/2014  David  Ndwiga vs IEBC & Others  the respondent’s counsel submitted that as the issues  raised  herein can only be ventilated  before the elections court, this court should not assume  jurisdiction  of an Elections  court as  there shall be  parallel  orders.  He prayed for dismissal   of the application for leave with costs.

32. In a rejoinder, Mr Wangila counsel for  the applicants  submitted that they wrote letters to IEBC for gazettment of the exparte applicants  but IEBC  ignored and  only corrected the  anomalies  relating  to another  political  party not the applicant.

33. Further, that in Petition No. 20/2017, PNU is the interested party. The applicant’s counsel  submitted that they are  challenging the decision  making  process by IEBC  for refusing to gazette the  applicants  as per the  interested party’s  list submitted  to IEBC.  He prayed for the orders sought.

DETERMINATION

34. I have considered  all the foregoing  and  in my view, the main  issue for  consideration  is whether  this court has  jurisdiction to hear and determine the dispute subject  matter of the  application for leave seeking to commence Judicial Review orders of mandamus compelling the respondent IEBC to gazette the exparte applicants  who are  members  of the interested  Party of  National Unity  (PNU) as members  of the Wajir County Assembly, representing  gender  top up and the  marginalized.

35. The question of whether or not  a court exercising Judicial  Review jurisdiction or constitutional or Human rights jurisdiction to hear and determine disputes arising  from political party lists  and  nomination processes leading  to gazettment  and assumption of office of member of County Assembly  whether  as gender top up  member of  marginalized  is now settled  vide several  Supreme Court  decisions.

36. In Moses  Mwicigi  & 14  Others vs  IEBC & 5 Others [2016]eKLR the Supreme Court stated as follows, while  expounding on Section  36(7), 8, 9 of  the Elections Act with regard  to nomination  for  County Assembly, for  purposes  of Article  177  of the Constitution:

“ It is  clear from the  foregoing  provisions  that the allocation of  nomination- seats  by the IEBC is a time  bound  process, that  starts  with the proportional determination  of the number  of seats due  to each political party.  On that basis, IEBC then ‘designates’ or ‘draws’ fro, the allocated list the number of nominees required to join the County Assembly.  To ‘designate’ or ‘draw from’ entails the act of selecting from the list provided by the political party.  It is  plain  to us  that the constitution and the  electoral  law  envisage the entire  process of nomination for the special seats, including the act of gazettement of the nominees name by the IEBC, as an integral  part of the of the Electoral  process.

The gazette notice in this case, signifies the completion of the election through nomination; and finalises the process of constituting the Assembly in question.  On the  other hand, an “election by registered  voters” as  was held  in the Joho case I sin principle, completed  by the issuance of form 38, which  terminate  the returning  officer’s  mandate  and  shifts  any issue  as the validity  of results  from the IEBC  to the  election court.

It is therefore clear that the publication of the Gazette notice marks end of the mandate of IEBC, regarding the nomination of party representatives, and shift   any consequential dispute to the elections courts.  The gazette notice also serves to notify the public of those who have been “elected” to serve as nominated members of a County Assembly.”

37. The Supreme Court  went further  to hold that:

“any challenge to the nomination of parties is an  integral part of the electoral  process, in the terms of  the  Constitution  and the  Electoral  law and that only an  election court  had the powers  to disturb  the  status quo.

Any aggrieved party would have to initiate the process of ventilating grievances by way of an election petition, in accordance with Section 75 of the Election Act.

It is clear to us that the Constitution provides for two modes of ‘election’.  The first is election in the conventional sense, of universal suffrage; the second is ‘election’ way of nomination, through the party list.  It follows from such a conception of the electoral process, that any contest to any election, whatever its manifestation, is to be by way of ‘an election petition.

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

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

38. See also a similar decision in Joseph Obiero Ndiege v IEBC A& 2 Others [2017] eKLR delivered on the same day. In Petition No. 147 of 2013 NGEC vs IEBC, & the Attorney General,the petitioners challenged the manner in which the IEBC had allocated the special seats.  Citing the above decision, Lenaola J  in Isaiah  Gichu Ndirangu  & 2 Others  v IEBC  & 4 Others  [2016]  e KLR stated  inter alia:

“I also do not agree with the contention by the petitioners that this court should characterize the instant petition as a constitutional dispute instead of a nomination/election dispute.

In my view, such characterization would go against the  electoral laws  and the Constitution  which was  tailored  in such a manner that it intended to have a special dispute  resolution  mechanism for  electoral  disputes, nominations  being  one  of them.”

39. The learned  judge  found that he  had no  jurisdiction  to hear  and determine a constitutional  petition  challenging  nomination process of the  3rd respondent  as a member  of Nandi County Assembly.  The exparte  applicants  herein claim  that despite  being  nominated in their respective  capacities  as Gender  Top up and  marginalized  by PNU their  political  party, and  despite  their names being forwarded to the IEBC for gazettement, IEBC has refused to do so.

40. Sections  34(4), 35 and  36  of  the Elections Act  as read  with Regulation 54 of the Elections (General) Regulations place  a duty  on the IEBC to ensure  that  the party  lists  submitted to it comply with the relevant provisions of the law, and the  Constitution  and  in particular  Article  177 of the Constitution, and  under Article 88(4) (e), the IEBC  is mandated  to resolve  all disputes  relating  to or  arising  from nominations.

41. The law does not empower IEBC to adjudicate upon nomination processes of a political party.  Such role is left to the political parties’ internal dispute resolution mechanisms in accordance with their respective constitutions.  The  IEBC only ensures  that the party  list  as  submitted to it by  a political  party, complies  with the relevant  laws  and  regulations.

42. After the IEBC receives the nomination list, it checks for compliance   and  takes  necessary  steps to finalise  the  process  of election for special  seats and in the  event  that a political  party  does not  comply with the law  then IEBC has  the  power  to reject the party list by requiring an amendment or rectification and a fresh  party list be submitted.

43. Once nominees are gazetted, any challenge to the process can only be through an election petition and not Judicial Review process.

44. In this case, even if Judicial Review was to apply, the applicant has not sought to quash the decision of IEBC to decline to gazette the exparte applicants for the respective seats. Section 2 of the Fair Administrative action Act, 2015 defines “failure” in relation to the taking of a decision, to include a “refusal” to take the decision.

45. Mandamus  cannot  quash  a decision  and  neither can  it issue  to compel  performance  of  a discretionary  power   as seen  from the provisions  of Article  177  of the Constitution and Sections 36(4) (7),(8) and 9 of the Elections  Act.

46. For  the above  reasons, I find  that the preliminary  objection  challenging  jurisdiction of this court  to hear and  determine  a dispute  relating  to party  nomination process is well  founded.

47. And as  jurisdiction is everything, without which , a court of law acts  in vain hence  it must down its  tools  as I hereby  do and  say no more.  ( see  The Owners  of Motor Vessel ‘Lilian S’ vs Caltex  Oil K Ltd [1989] KLR 1 and  Macharia & Another  vs KCB  Ltd  & 2 Others  Civil Application No. 2  of  2011.

48. I find and hold that this court lacks the requisite jurisdiction to entertain these proceedings.  I uphold the preliminary objection and  proceed  to strike out  the  chamber  summons  dated  11th September  2017.

49. Each party shall bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 29th day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Wangila h/b for Ojienda for the applicant

Mr Ibrahim Ogle for the Respondent

CA: George