Free Kenya Initiative & 6 others v Independent Electoral & Boundaries Commission & 4 others; Kenya National Commission on Human Rights (Interested Party) (Constitutional Petition E160 of 2022) [2022] KEHC 11066 (KLR) (Constitutional and Human Rights) (30 May 2022) (Ruling)
Neutral citation:
[2022] KEHC 11066 (KLR)
Republic of Kenya
Constitutional Petition E160 of 2022
AC Mrima, J
May 30, 2022
Between
Free Kenya Initiative
1st Petitioner
Bob Njagi
2nd Petitioner
Nicholas Oyoo
3rd Petitioner
Mulialia Okumu
4th Petitioner
Felix Wambua
5th Petitioner
Jeremiah Nyagah
6th Petitioner
James Kamau
7th Petitioner
and
Independent Electoral & Boundaries Commission
1st Respondent
Office of the Registrar of Political Parties
2nd Respondent
National Assembly
3rd Respondent
Senate of the Republic of Kenya Attorney General
4th Respondent
Attorney General
5th Respondent
and
Kenya National Commission on Human Rights
Interested Party
Ruling
Introduction:
1.On April 28, 2022, this Court delivered Ruling No. 1.
2.This court declined to issue any conservatory orders to suspend some provisions of the Election (General) Regulations, 2012 (hereinafter referred to as ‘the impugned Regulations’) requiring those intending to vie in various elective positions as independent candidates to avail varying numbers of copies of the national identity cards of their supporters.
3.That decision is yet to be appealed against. However, the 3rd and 4th petitioners herein, Nicholas Oyoo and Mulialia Okumu, (hereinafter referred to as ‘the applicants’) filed a Notice of Motion dated May 16, 2022 seeking to review the dismissal order made on April 28, 2022. I will hereinafter refer to the Notice of Motion as ‘the application’).
4.The application was opposed by the 1st and 5th respondents. The rest of the parties did not take part in the hearing of the application.
The application:
5.The application sought the following orders: -
6.The application was premised on 19 grounds which appear on the body of the application.
7.Further, the application was supported by the affidavit sworn by Nichols Oyoo, the 1st applicant, on May 16, 2021. In further support to the application, the applicants filed written submissions.
8.The 1st and 5th respondents filed separate Grounds of Opposition to the application. The 1st applicant further filed written submissions.
9.The application was heard on May 24, 2022, hence, this ruling.
The Parties’ cases:
10.In the interest of time, I will not reproduce the respective parties’ cases verbatim, but will take into consideration the same as well the written submissions and the decisions referred to in the analysis.
Analysis:
11.Review entails a Court making a departure from its earlier finding on an issue. A court may do so on its own motion or upon application by a party. Review is discretionary.
12.In exercising such discretion, the Court must abide by the principles established for the exercise of such powers either by the law or settled judicial precedents.
13.The power of review in the High Court is anchored in the Civil Procedure Act, cap. 21 of the Laws of Kenya and the Civil Procedure Rules, 2010.
14.Section 80 of the Civil Procedure Act provides as follows: -Any person who considers himself aggrieved—
15.Order 45 Rule 1 of the Civil Procedure Rules, 2010 further provides for review in the following manner: -
| Any person considering himself aggrieved— |
| (a) | by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or | ||
| (b) | by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay. | ||
| (a) | by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or | ||
| (b) | by a decree or order from which no appeal is hereby allowed, | ||
16.Courts have severally dealt with the issue of review. The Supreme Court in Application No. 8 of 2017, Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, quoted with approval the findings of the East Africa Court of Appeal in Mbogo and another v Shah [1968] EA, upon establishing the following principles: -
17.The Court of Appeal in Civil Appeal No 2111 of 1996, National Bank of Kenya v Ndungu Njau observed as follows in respect of reviews applications: -
18.The import of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was considered by the High Court in Miscellaneous Application 317 of 2018, Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR. Upon considering comparative jurisprudence, the Court crystallized the principles for consideration in reviewing its own decisions as follows:
19.Returning to the case at hand, the applicants relied mainly on two grounds. They are the discovery of new and important matter or evidence and an error on the face of the record.
20.According to the applicants, the new and important matter and evidence had two limbs. The first limb was the position taken by this court on when the impugned regulations came into force and whether those who vied as independent candidates in the previous elections were subjected to the requirement to avail copies of their supporters’ identity cards.
21.The second limb was that the process of verification of the Voters Register began after Ruling No. 1 was delivered where it became apparent that the need to avail the copies aforesaid was unnecessary.
22.On the ground of an error on the face of the record, the applicants reiterated that the error was on the Court’s finding on when the requirement to avail copies of identity cards came into being.
23.According to Order 45 of the Rules, for an Applicant to succeed on the ground of discovery of new evidence, the applicant must demonstrate ‘… the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made...’
24.The above requirement can be equated to the evidence referred to as ‘new and compelling evidence’ in article 50(6) of the Constitution. Speaking of such evidence, the Supreme Court in Col. Tom Martins Kibisu v Republic Petition No. 3 of 2014 [2014] eKLR presented itself thus: -
25.In this case, the new evidence is that the applicants came to learn during the verification of the Voters Register that the need to avail copies of the identity cards was unnecessary since one could even electronically confirm his or her voter registration status with the Commission through the identity card number only.
26.The question which now begs for an answer is whether the applicants’ revelation will satisfy the test of new and important matter or evidence. I do not think so, and, for some reasons.
27.First, the verification of the Voters Register has no relation to the constitutional and statutory requirements for qualification of persons intending to vie in elections. In fact, the Voters Register is not a preserve of the persons intending to vie in elections, but is open to all registered voters.
28.Second, the new evidence ought to be admissible in law, of high probative value and capable of belief, and which, if adduced would probably have led to a different verdict. In the context of the first reason, there is no way the issue of the Voters Register, even if admissible, would persuade this Court to reach a different verdict. Indeed, it would have been a non-issue in the context of the application for conservatory orders.
29.Third, the verification of the Voters Register is not a foreseeable reason for suspending a legislation.
30.This Court does not, therefore, find favour with the applicants’ assertion on the aspect of discovery of new and important matter and evidence. The first ground, hence, fails.
31.The second ground relates to the alleged error on the face of the record. As said, the error was that the Court made a wrong finding on when the requirement for supply of copies of supporters’ identity cards came into effect.
32.There are some two observations which I must make. First, it is settled in law that an erroneous order/decision cannot be corrected in the guise of exercise of power of review. Such is only open to appeal.
33.Two, the aspect of when the requirement for supply of copies of supporters’ identity cards by those intending to vie as independent candidates came into effect was put into the correct perspective by this Court in Nairobi High Court Constitutional Petition No. E219 of 2022 Bernard Neto Obunga & others v Independent Electoral & Boundaries Commission & others (unreported).
34.In a ruling rendered on 24th day of May, 2022, this court addressed the issue as follows: -
35.From the foregoing, it seems that nothing turns on the ground of the alleged error on the face of the record.
36.The upshot is, therefore, that none of the grounds in support of the application is merited.
Disposition:
37.Flowing from the above discussion and the findings, this Court now makes the following final orders: -(a) The Notice of Motion dated May 28, 2022 is hereby dismissed.(b) The Applicants to bear the costs of the application.(c) As earlier ordered, this matter shall come up for directions on June 16, 2022.Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF MAY, 2022A. C. MRIMAJUDGERuling No. 2 virtually delivered in the presence of:Mr. Murimi Karani, Counsel for the Applicants.**Mr. Munyua Ezekiel, Counsel holding brief for Dr. Arwa for the 1st Respondent.**Miss. Wamuyu, Counsel for the 5th Respondent.**Jared Otieno – Court Assistant**