Gichaga v Keroche & 5 others (Constitutional Petition 11 of 2022) [2022] KEHC 13455 (KLR) (6 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 13455 (KLR)
Republic of Kenya
Constitutional Petition 11 of 2022
JM Ngugi, J
October 6, 2022
IN THE MATTER OF ARTICLES 22(1) & (2) (C), 23, 24, 38, 81,252, 253(B), 258, 260 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF CHAPTER SIX OF THE CONSTITUTION OF KENYA 2010 (LEADERSHIP AND INTERGRITY)
AND
IN THE MATTER OF THE CONTRAVENTION AND VIOLATION OF ARTICLES 88(4) & (5) AND 99 (2) OF THE CONSTITUTION OF
KENYA
AND
IN THE MATTER OF SECTION 24 OF THE ELECTIONS ACT
AND
IN THE MATTER OF INDEPENDENT ELECTION AND BOUNDARIES COMMISSION ACT, 2011
AND
IN THE MATTER OF THE LEADERSHIP AND INTERGRITY ACT,
2012
AND
IN THE MATTER OF THE ANTI-CORRUPTION AND ECONIMIC CRIMES ACT (SEC. 45)
AND
IN THE MATTER OF THE TAX PROCEDURES ACT
Between
Daniel Mahiri Gichaga
Petitioner
and
Tabitha Karanja Keroche
1st Respondent
United Democratic Alliance - UDA
2nd Respondent
Independent Electoral & Boundaries Commission
3rd Respondent
Ethics and Anti- Corruption Commission
4th Respondent
Kenya Revenue Authority
5th Respondent
Office of the Ombudsman
6th Respondent
Judgment
1.The Petitioner and the 1st Respondent were both contenders for the 2nd Respondent’s ticket to run for the Nakuru County Senatorial Seat in the General Elections held on August 9, 2022. The 2nd Respondent held party primaries on April 14, 2022. The Petitioner came second while the 1st Respondent emerged victorious, making her the 2nd Respondent’s nominee for the position. The 1st Respondent went on to contest in the General Elections and was declared the elected Senator for Nakuru County.
2.The Petition is said to be filed on behalf of the residents of Nakuru County and the Kenyan people is dated May 12, 2022. It seeks the following prayers:i.That a Declaration be and is hereby issued that the 1st Respondent is non-compliant with Chapter Six of the Constitution of Kenya, 2010 and is therefore unfit to hold public office.ii.That a Declaration be and is hereby issued that the 1st Respondent is non-compliant with Chapter eight of the Constitution of Kenya, 2010 and is therefore unfit to hold the office of Member of Parliament.iii.That a Permanent injunction does issue barring the 1st Respondent from contesting the General Elections on August 9, 2022 either as a member of the 2nd Respondent party or as an independent candidate for the position of Senate Nakuru County, or any other position anywhere in Kenya.iv.That the Independent Electoral and Boundaries Commission be ordered not to clear the 1st Respondent to run for any elective position.v.That being a Public Interest Petition, parties to bear their own costs.
3.Given that the General Elections were already held on August 9, 2022, some of the prayers, as framed, have been overtaken by events. However, should the Petitioner prevail, the Court would be in a position to craft appropriate remedies as guided by Article 23 of the Constitution.
4.The nub of the Petitioner’s case is the claim that the 1st Respondent does not meet the high integrity threshold to hold public office in Kenya as stipulated in Chapter 6 of the Constitution. He wants the Court to deploy Chapter 6 of the Constitution to bar the 1st Respondent from holding the elected office of Senator for Nakuru County.
5.The essential facts the Petitioner has pleaded to invite the reliefs he seeks are as follows. The Petitioner claims that the 1st Respondent owns 95% of Keroche Breweries Limited (hereinafter, 'Keroche Breweries'), a company dealing in the production and sale of alcoholic beverages in Kenya. He says that although Keroche Breweries has enjoyed immense growth and success over the years, it is a matter of public notoriety that the 1st Respondent has been accused in numerous Court cases for crimes related to tax evasion. He further claims that in those cases, the 1st Respondent has admitted to non-payment of taxes and entered into numerous agreements with the 5th Respondent for payment of those taxes in negotiated instalments.
6.The Petitioner says that the 1st Respondent currently owes Kshs 14 Billion (Fourteen Billion) in taxes and further that, from public documents, the 1st Respondent, through her company, has admitted to owing Kshs 957,000,000 - a fraction of the taxes claimed by the 5th Respondent. According to the Petitioner, the 1st Respondent has only agreed to settle these taxes after prosecution, which the Petitioner claims is evidence of the 1st Respondent’s unwillingness to pay taxes. The Petitioner further accuses the 1st Respondent of dishonouring payment agreements reached through alternative dispute resolution, which, he says, is further evidence of her lack of good will in paying taxes and her intent to continue avoiding tax obligations.
7.It is the Petitioner’s case that there is an ongoing criminal case (Case No 1436 before the Anti-Corruption Court in Nairobi) where the 1st Respondent has been charged with various tax-related offences related to alleged evasion of payment of taxes amounting to Kshs 14,451,836,375. While the Petitioner acknowledges the presumption of innocence in the criminal case, he asserts that the same cannot be said for the Kshs 957,000,000 which he says the 1st Respondent has admitted to owing and respecting which no appeal or other Court proceedings have been filed.
8.The Petitioner thus contends that the admission of part of the tax debt by the 1st Respondent after prosecution 'does not take away her guilt.' He alleges that the 1st Respondent continues to default on repayment thus making it a continuing offence and a violation of various tax laws.
9.The Petitioner invites the Court to consider the nature of white-collar crimes as described by Edwin Sutherland and opines that unless the 1st Respondent is properly characterised as a criminal, it may be lost to the Kenyan public that she is unfit to run for office. To the Petitioner, tax evasion is a serious violation Chapter Six of the Constitution.
10.The Petitioner contends that on issues of integrity, crime, and compliance with Chapter Six of the Constitution, one cannot hide behind the shield of a company. In any event, he says, the 1st Respondent has been arrested and prosecuted on various occasions for masterminding tax evasion by her company.
11.The Petitioner complains that the 1st Respondent fails the integrity test in the Constitution because, he says, she has violated or has threatened to violate various laws: First, the Petitioner claims that the 1st Respondent fails the test of Chapter Six of the Constitution. Second, the Petitioner says that the clearance of the 1st Respondent as a candidate violates the requirement of having only candidates of proven integrity run for political offices. He contends that a candidate using unremitted taxes to fund her campaign does not create a free and fair environment for voters and other candidates and there is a danger of exposing tax-paying voters to bribery and related offences.
12.Third, the Petitioner claims that by failing the test of Chapter Six of the Constitution, the 1st Respondent is unqualified under Article 99(2) of the Constitution. Fourth, the Petitioner says that by her own admission and failure to remit taxes, the 1st Respondent is in violation of Section 45 of the Anti-Corruption and Economic Crimes Act.
13.Fifth, the Petitioner claims that the 1st Respondent is in violation of Chapter Eight of the Constitution and particularly Article 99(2)(h) which disqualifies from election as a Member of Parliament, a person who is found, in accordance with any law, to have misused or abused a state office or public office or in any way to have contravened Chapter Six. According to the Petitioner, the term ‘decision’ in this case includes an admission, as the 1st Respondent opted not to go through the litigation process.
14.It is the Petitioner’s case that by allowing the 1st Respondent to run for office, the 2nd and 3rd Respondents are promoting impunity and serious affront to the rule of law, democracy, and the will of the people. Particularly, the Petitioner contends that the 3rd Respondent has absconded its constitutional mandate of conducting credible, free, and fair elections.
15.The Petitioner argues that allowing the 1st Respondent to run for office will promote the continued degradation of moral ethos as a society. He contends that the elections for the Nakuru senatorial seat [were] under threat of not meeting the constitutional threshold of a free and fair election owing to the participation of unqualified persons. He further argues that in case the 1st Respondent is elected Senator, she would be empowered by her leadership to continue flouting tax laws and shield herself from prosecution. He thus invites the 3rd, 4th, and 5th Respondents to support his Petition.
16.The 5th Respondent supports the Petition through the affidavit of Timothy Oloo, an officer at its Nakuru office handling the 1st Respondent’s account. He depones that the 1st Respondent is a registered taxpayer under PIN xxxx for income tax obligation and that she has not filed her Annual Income Tax Returns from the period starting 2008 to 2014.
17.He depones further that the 1st Respondent filed her tax returns for the years 2015, 2016 and 2017 late and a penalty of Kshs 2,000 charged for each year, which penalties remain unpaid. According to him, the 1st Respondent has an outstanding income tax debt of Kshs 1,405,223 for the period from 2015 to 2021, which remains unpaid to date. It is his deposition that the 1st Respondent does not hold a valid Tax Compliance Certificate and has thus not met her tax obligations as required by law.
18.All the other Respondents opposed the Petition.
19.The 1st Respondent opposed the Petition vide her affidavit dated May 23, 2022. She deposes that she emerged the winner in the 2nd Respondent’s party primaries held on April 14, 2022 with 98,439 votes; beating the Petitioner who came second with 12,240 votes. She contends that the Petitioner is not motivated by ethics or ideals, but rather he is a sore loser with selfish interests aimed at eliminating competition for personal gain.
20.The 1st Respondent deposes that she is employed by Keroche Breweries Limited as its Chief Executive Officer and that she is not the owner of the company, which she says is a reputable manufacturer of alcoholic beverages. According to the 1st Respondent, Keroche Breweries Limited is a duly registered licenced local manufacturer of good repute with good relations with its customers, government, and non-governmental actors.
21.The 1st Respondent depones that the company has been recognised in many forums as a leading business in the country. According to her, the company is domiciled at the Large Taxpayers Office of the 5th Respondent and has been severally recognised by the 5th Respondent for its commendable performance.
22.The 1st Respondent acknowledges that Keroche Breweries Limited has pending tax disputes with the 5th Respondent as is the case with most businesses. These disputes she contends are of a legal nature and are pending settlement in Court and before Alternative Dispute Resolution fora. To the 1st Respondent, the right of a taxpayer to contest tax imposition cannot be elevated into an issue of integrity.
23.She depones that she is a stranger to the admission of tax liability and says that there are negotiations between the Keroche Breweries Limited and the 5th Respondent to resolve pending tax disputes. She denies that she has been convicted in any Court of law for criminal conduct unbecoming of a leader. In any case, she does not understand the nexus of the tax relations of Keroche Breweries Limited and herself as a private person. She acknowledges that being that she is vying for a public leadership position, she is open to scrutiny but contends that Chapter Six of the Constitution and the Leadership and Integrity Act should not be weaponised to get rid of political competition.
24.In response to the assertions by the 5th Respondent, the 1st Respondent also filed the Affidavit dated June 28, 2022. While she admits that she is liable to income tax obligation, she denies that she has failed to file returns or that she has outstanding tax debts. As for the records presented by the 5th Respondent, she states that the same are different from the information presented to her by the 5th Respondent. She points to a return acknowledgement receipt and a Tax Compliance Certificate and implores the 5th Respondent to desist from the political arena and act fairly as a public body.
25.The 2nd Respondent also opposed the Petition through the affidavit of Anthony Mwaura - the 2nd Respondent’s National Elections Board Chairman dated June 29, 2022. He confirms that the 1st Respondent is a member of the 2nd Respondent; successfully cleared to participate in the 2nd Respondent’s party primaries, validly cleared to contest for the position of Member of Senate for Nakuru County and issued with a nomination certificate. After the nomination, he says that the 1st Respondent’s name was then forwarded to the 3rd Respondent as the 2nd Respondent’s nominee.
26.He contends that the allegations levelled against the 1st Respondent are baseless and unsubstantiated considering that they are the subject of a criminal case pending determination before a competent Court. He contends further that the 1st Respondent has not been convicted of any offence or found to be in violation of Chapter Six of the Constitution by any Court or competent authority.
27.It is further his contention that even if a person has been found guilty of any offence or in contravention of Chapter Six of the Constitution, such a person is not disqualified from being elected as a Member of Parliament unless all possible appeals or review of the decision have been exhausted. According to him, the jurisdiction of this Court has been invoked prematurely and by dint of Article 88(4) of the Constitution, the 3rd Respondent is the body mandated to handle such a dispute before this Court.
28.It is his contention that the questions of whether the 1st Respondent has violated Chapter Six of the Constitution should be first handled by the 4th Respondent as mandated by the Leadership and Integrity Act. To him, the Petition does not disclose any arguable constitutional issue with a reasonable chance of success.
29.The 3rd Respondent also opposed the Petition through the Affidavit dated August 1, 2022 by Chrispine Owiye, the 3rd Respondent’s Director of Legal Services. He depones that the 3rd Respondent applies the provisions of Chapter Six of the Constitution as well as Article 99(2)(g), (h) and (3) before clearance of any candidate to vie for any political position. According to him, the 1st Respondent has not yet been found guilty of violating Chapter Six of the Constitution, neither is she subject to a sentence of imprisonment of at least six months as at the date of registration as a candidate and is therefore not barred from vying by didn’t of Article 99(2)(g), (h) and 3 of the Constitution.
30.He depones further that the 1st Respondent has complied with all the requirements set by the Constitution and has submitted all documents as required by the 3rd Respondent and is thus cleared to vie for the position of Senator of Nakuru County.
31.He contends that the Petitioner has prematurely invoked the jurisdiction of this Court as he has not exhausted all the avenues provided for under Article 88(4)(e) as read with Section 74(1) of the Elections Act, which provide that the 3rd Respondent is the body mandated to handle such a dispute in the first instance. He therefore prays that the Petition be dismissed for being an abuse of the Court process.
32.The Petition was also opposed by the 6th Respondent though the Affidavit of Mercy Wambua- the 6th Respondent’s Commission Secretary dated June 30, 2022. It is her deposition that the 6th Respondent, a Constitutional Commission established under Article 59(4) of the Constitution of Kenya has the mandate to investigate any conduct in state affairs or any act or omission in public administration by any state organ, state, or public officer in National and County Government that may result in impropriety or prejudice.
33.She contends that the issues raised in the Petition are not under the purview and mandate of the 6th Respondent and the same can well be addressed by the 4th and 5th Respondents. It is her position that the issues of tax evasion and compliance can be well addressed by the 5th Respondent from its mandate given under Section 5 of the Kenya Revenue Act (sic) and the Tax Procedures Act.
34.She further contends that the Petition also raises issues of economic crimes and integrity, which are within the mandate of the 4th Respondent under Section 11 of the Ethics and Anti-Corruption Act. According to her, the 4th Respondent has the mandate to investigate economic crimes and recommend them for prosecution.
35.It is her deposition that the 1st Respondent is a private entity, and that the 6th Respondent has no jurisdiction to investigate her on her conduct, as the 6th Respondent’s mandate is limited to investigations of the conduct of the National Government, County Governments and State and Public Officers. According to her, the 6th Respondent can only investigate private bodies and entities in matters relating to denial and/ or refusal of information pursuant to the Access to Information Act, which are not raised in this Petition.
36.In a rejoinder to the 1st Respondent’s averments by a further Affidavit dated June 5, 2022, the Petitioner denies that the Petition has been brought as a reaction to the results of the 2nd Respondent’s party primaries. He hints however, that any election where a candidate gets more than two thirds of the votes cast should be suspicious.
37.The Petitioner faults the 1st Respondent for what he terms as 'failure to unsettle the matter of self-admitted tax evasion and dishonoured payment plans'. He further faults the 1st Respondent for what he says are arrogant averments by the 1st Respondent associating herself with Keroche Breweries Limited.
38.The Petitioner further puts the 1st Respondent to strict proof on the claim that she is only an employee of Keroche Breweries Limited and not the owner of 95% shareholding. He insists that the 1st Respondent is the owner of 95% of the shares of the Keroche Breweries Limited, with the remainder of the shares distributed among her children, while her husband is a director.
39.The Petitioner further alleges that the 1st respondent changed her name to include the name ‘Keroche’. He alleges that the 1st Respondent claimed to have singlehandedly built the company in Nairobi Petition No 324 of 2011 and admitted to owning 95% of the company.
40.The Petitioner thus contends that the 1st Respondent should bear the criminal responsibility for crimes committed in her capacity as owner, director, and employee. He reiterates that the 1st Respondent is dishonest for alleging that she is a stranger to admissions of tax liability when she is out on bail on charges of economic crimes.
41.It is the Petitioner’s contention that it is the voters’ legitimate expectation that by the time a candidate appears on the ballot paper, all the relevant institutions have done their constitutional duty to ensure that they meet the highest leadership and integrity standards.
42.The Petition was canvassed by way of written submissions. The Petitioner’s Submissions are dated June 5, 2022. The Petitioner first addressed the issue of jurisdiction. He cites the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR and submits that the jurisdiction of this Court is given under Article 165 of the Constitution. He contends that his Petition raises unique issues that require the interpretation of this Court especially on the applicability of Article 99 (2) and (3) of the Constitution in respect of the definition, applicability, and scope of the words ‘conviction’, ‘appeal’, ‘review’ and ‘decision’. The Petitioner relies on the case of Evans Ladtema Muswahili v Vihiga County Public Service Board & 2others; Marley Ezekiel Ayiego (Interested Party) [2021] eKLR and maintains that this Court has the jurisdiction to hear his Petition.
43.It is also the Petitioner’s submission that the 1st Respondent has not properly responded to the Petition and that her affidavit contains mere denials. He relies on the case of John Patrick Machira T/A Machira & Co Advocates v Grace Wahu Njoroge [2006] eKLR for the proposition that where a Respondent has not addressed the issues raised in a claim, the Respondent is deemed to agree with the Petitioner and such documents the Respondent has filed should be disregarded.
44.The Petitioner contends that the 1st Respondent is personally responsible for the crimes of tax evasion as the owner and director of Keroche Breweries Limited and that in criminal cases there is no need of lifting the corporate veil. He submits that there is a need to characterize the offences of tax evasion as criminal and not just civil wrongs. According to the Petitioner, a person said to have committed such offences cannot be said to comply with Chapter Six of the Constitution.
45.On the Interpretation of Articles 99(1), the Petitioner argues that the same ought to be read in context of the entire Chapter Six and that the elements of fraud corruption and tax evasion are enough to conclude that the 1st Respondent is not compliant with Chapter Six of the Constitution. On Article 99(2), the Petitioner reiterates that the 1st Respondent has always entered into agreements with the 5th Respondent after prosecution and that the act of subjecting oneself to a payment plan is prima facie an admission of the offence of tax evasion. He contends that a consent entered into by parties in a criminal trial is as good as the Judgment of the Court, the same having been made within a criminal trial.
46.The Petitioner argues that even if the Court finds that the act of admitting liability through a consent is not a conviction, the same amounts to a decision, which brings the person within the purview of criminal culpability. Accordingly, the Petitioner submits that a conviction is not the only yardstick for determining integrity and that the dishonoured settlements arrived at between the 1st Respondent and the 5th Respondent amount to a conviction or decision.
47.The Petitioner submits that there is no pending review or appeal where an individual voluntarily admits liability. He cites the case of Kenya Commercial Bank Ltd v Specialised Engineering Co Ltd [1982] KLR 485 and contends that there is no evidence of any attempt to review the consents between the 1st and 5th Respondents.
48.In conclusion, the Petitioner invites the Court to consider the pronouncements on integrity in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and Moses Kasaine Lenolkulal v Director of Public Prosecutions [2019] eKLR. He submits that the purposive interpretation of the Constitution should see to it that persons of questionable integrity should not be allowed to sit in public offices.
49.The 5th Respondent’s Submissions are dated July 21, 2022. The 5th Respondent maintains that the 1st Respondent has outstanding tax obligations. It cites the provisions of Chapter 12 of the Constitution on public finance and particularly Articles 201(b) (i) and 210 of the Constitution and submits that all Kenyans are mandated by the Constitution to pay taxes.
50.The 5th Respondent further cites Article 10(2) (c) and contends that integrity is a national value and principle of governance. It relies on the case of Timothy Njoya & 17 Others v Attorney General & 4 Others [2013] eKLR. The 5th Respondent also relies on George Lesaloi Selelo & another v Commissioner General, KRA & 4 others; Pevans EA Limited (t/a Sportpesa) & 3 others [2019] eKLR for the proposition that payment of tax is a constitutional obligation.
51.The 5th Respondent cites Article 99 of the Constitution and Section 33(1) of the Leadership and Integrity Act and further relies on Okiya Omtata Okoiti & Nyakina Wyclife Gisebe v Bidco Africa & 6 Others [2017] eKLR for the assertion that failure to pay taxes gives rise to a cause of action in public law. The 5th Respondent thus submits that the 1st Respondent has not met her tax obligations and is therefore in violation of Chapter Six of the Constitution.
52.Lastly, the 5th Respondent submits that costs follow the event and relies on the case Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR
53.The 1st Respondent’s Submissions are dated July 21, 2022. The 1st Respondent submits that Article 88(4)(e) of the Constitution and Section 74 of the Elections Act expressly mandate the 3rd Respondent to determine nomination disputes. She relies on Sammy Ndung’u Waity v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR and contends that under the doctrine of exhaustion, the Petitioner ought to have exhausted all dispute resolution mechanisms before approaching the Court.
54.On the issue of the ongoing criminal trial in Criminal Case No 1436 of 2019, the 1st Respondent contends that the case is yet to be concluded and invokes the presumption of innocence under Article 50(2) (a) of the Constitution. She argues that the consequence of allowing the orders sought by the Petitioner would presume her guilty and violate Articles 25 and 50 of the Constitution as held in the case of Paul Alala Okoth v Kenya Airports Authority & 2Others [2014] eKLR
55.The 1st Respondent also submits that a company is a separate entity from the individual shareholder as established in Salomon & Co Ltd v Salomom (18970. She contends that the tax dispute presented by the Petitioner between the 5th Respondent and Keroche Breweries is a civil dispute resolved through alternative dispute resolution agreements and to which the 1st Respondent is neither party to nor liable for their enforcement.
56.The 1st Respondent further submits that the 5th Respondent, having received her annual returns and certified her as tax-compliant cannot accuse her of tax evasion. She invokes the doctrine of approbation and reprobation and relies on Evans v Bartlam [1937] 2 ALL ER 649 as cited in Republic v Institute of Certified Public Secretaries of Kenya Ex-parte Mundia Njeru Geteria [2010] eKLR.
57.The 1st Respondent denies that she is a party to alternative dispute resolution agreements made between Keroche Breweries Ltd and the 5th Respondent. She submits that the doctrine of privity of contract bars a third party from enforcing an agreement which he is not a party to, a proposition she supports with Saving & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another [2015] eKLR
58.She further contends that the enforcement of party agreements in not a public interest matter and does not allow the Petitioner to make allegations as to the 1st Respondent’s tax liability or continuously refer to her as a criminal.
59.On whether the Petitioner has met the conditions for grant of interlocutory orders set out in Giella v Cassman Brown & Co Ltd [1973] EA 358, the 1st Respondent argues that the Petitioner has not substantially proved how the 1st Respondent has contravened the provisions of Article 99 of the Constitution. She contends that she has not been convicted of the crimes alleged by the Petitioner and 5th Respondent and that the allegations that she has been using unremitted tax for personal reasons including campaigns are unfounded and defamatory. Accordingly, the 1st Respondent submits that the Petitioner has not established a prima-facie case.
60.The 1st Respondent also argues that the Petitioner has not established what irreparable harm will be suffered by him or the public. She contends that the Court should not entertain persons who hide behind public good to advance political advantage to the Respondent’s and the public’s detriment. She relies on the case of Ashok Kumar Pandey v State of West Bengal cited in Brian Asin & 2 Others v Wafula Chebukati & 9 Others [2017] eKLR and claims that the Petitioner is only seeking her disqualification to reinstate his option to vie for the electoral seat. It is also the 1st Respondent’s argument that the Petitioner has not established any wrongdoing on her part and thus the balance of convenience tilts towards her -the 1st Respondent.
61.In conclusion, the 1st Respondent maintains that the Petitioner has not shown how the disputes between Keroche Breweries Limited, and the 5th Respondent warrant her disqualification and that the Petitioner’s claims against her integrity are baseless and ought to be dismissed.
62.The 2nd Respondent’s Submissions are dated June 29, 2022. According to the 2nd Respondent, the substratum of the Petition is a challenge to the 1st Respondent’s nomination disguised as a Constitutional Petition. The 2nd Respondent relies on Joyce Cherop Kapsandoy & 609 others v Kenya Power & Lighting Company [2019] eKLR in which it contends that Courts were cautioned to resist the invitation to determine disputes disguised as Constitutional Petitions.
63.The 2nd Respondent submits that a party ought to exhaust any alternative dispute resolution mechanisms before filing a matter in Court and relies on Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR and William Odhiambo & 3 others v Attorney General & 4 others ; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR. The 2nd Respondent cites the provisions of Article 88(4)(e) of the Constitution and Section 74(1) of the Election Act and submits that the 3rd Respondent is mandated to arbitrate any matter relating to nomination or any dispute arising therefrom. It contends that the crux of the Petition is within the mandate of the 3rd Respondent’s dispute resolution mechanism.
64.To the 2nd Respondent, the Rules on procedure of settlement of disputes and the principles formulated by the Supreme Court are clear that all pre-election disputes should be brought before the 3rd Respondent for resolution in the first instance and that those principles do not distinguish disputes raising constitutional questions. The 2nd Respondent thus urges the Court to be persuaded by Narok County Council v Trans Mara County Council & another [2000] 1 EA 161 and Speaker of the National Assembly v Karume [2008] 1 KLR.
65.It is also the 2nd Respondent’s submission that while this Court has original unlimited jurisdiction, the same cannot be invoked in this instance because Parliament has prescribed the procedure for handling the grievances raised in the Petition.
66.The 2nd Respondent further submits that the 4th Respondent is the institution mandated by Article 79 and 80 of the Constitution to ensure compliance and enforcement of Chapter Six of the Constitution in the first instance.
67.According to the 2nd Respondent, Chapter Six has to be read together with Articles 99(2)(g) and (h) and Article 99(3) of the Constitution and that while Article 99(2) disqualifies a person from election as a Member of Parliament if he is subject to imprisonment for at least six months or has been found to have contravened Chapter Six, Article 99 (3) tempers the provision by providing that the person is only disqualified if they have exhausted all possibility of appeal or review.
68.The 2nd Respondent argues that Article 50 provides for the presumption of innocence which is an unlimited fundamental right. According to the 2nd Respondent, the 1st Respondent has a pending case before a Court, she has not been found guilty and cannot therefore be barred from contesting on the basis of mere allegations. The 2nd Respondent relies on International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR and submits that the 1st Respondent should not be disqualified as the proceedings against her are still pending in Court.
69.On the Petitioner’s quest for a permanent injunction, the 2nd Respondent relies on the principles set out in Giella v Cassman Brown & Co Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR.
70.On the first condition, the 2nd Respondent submits that a prima facie is as defined in Mrao Limited v First American Bank of Kenya & 2 others [2013] eKLR. It contends that the Petitioner has not established a prima facie case with the probability of success, by failing to demonstrate that the 1st Respondent has been found in violation of Chapter Six of the Constitution, convicted, and sentenced to imprisonment for six months and exhausted her right of appeal.
71.On irreparable harm, the 2nd Respondent submits that the Court need not consider this requirement since the Petitioner has not established a prima facie case and again, relies on Nguruman Limited v Jan Bonde Nielsen & 2 others. On the third requirement, the 2nd Respondent submits that although the Court need not consider it in the absence of a prima facie case, the balance of convenience does not tilt towards the Petitioner since there would be a much larger risk of injustice to the 1st Respondent, who has neither been found in violation of Chapter Six of the Constitution, convicted, and sentenced to imprisonment for six months nor exhausted her right of appeal.
72.The 3rd Respondent’s Submissions are dated August 1, 2022. The 3rd Respondent contends that the main issue in the Petition is the party nomination of the 1st Respondent by the 2nd Respondent to contest for the Senatorial seat and her subsequent clearance by the 3rd Respondent to vie in the General elections. According to the 3rd Respondent, this is a function of the 3rd Respondent mandated by Article 88(4)(e) as read with Section 74(1) of the Elections Act, which is; to arbitrate, settle and resolve pre-election disputes relating to nominations and clearance to vie.
73.The 3rd Respondent further submits that it is to this end that it has formulated Rules on Procedure of Settlement of Disputes as well as the formulation of principles by the Supreme Court which provide that all pre-election disputes be brought before the 3rd Respondent. It relies on Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR and William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the Court reiterated the purpose of the exhaustion doctrine as ensuring the postponement of judicial consideration to ensure a party is diligent in the protection of his interests withing the available mechanisms for resolution outside Court.
74.The 3rd Respondent further relies on the principles developed in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others; Ahmed Ali Muktar (Interested Party) [2019] eKLR referred to in Okoiti & 15 others v Attorney General & 7 others; Commission on Administrative Justice & 15 others (Interested Party) (Constitutional Petition E090,E168,E221,E230,E234,E249,E017,E109 & E010 of2022 (Consolidated) [2022] KEHC 3209 (KLR) (Constitutional and Human Rights) (24 June 2022) (Judgment). It is therefore 3rd Respondent’s submission that where there is a procedure provided in law, that procedure should be followed strictly.
75.The 3rd Respondent reiterates that it acts in accordance with the law in exercising its role in the nomination process. It submits that once political parties present their lists of aspirants, it commences the exercise of confirming that the aspirants meet the necessary qualifications prescribed by law and consults the relevant bodies, including the 4th Respondent. It then weighs the representations against Article 38 and 24, makes its own decision on the candidate’s qualification for nomination and issues a certificate to the validly nominated candidates.
76.The 3rd Respondent also submits that the presumption of innocence is a right that cannot be limited. It contends that the 1st Respondent has a pending Court Case, has not been found guilty and has complied with all the requirements set by the Constitution and the 3rd Respondent and has submitted all the required documents.
77.It contends further that Chapter Six, Article 99(2)(g) and (h) only disqualify a person when they have been convicted and sentenced to imprisonment for at least six months while Article 99(3) exempts from disqualification a person who is yet to exhaust all reviews and appeals of a decision. It also relies on International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR and maintains that in the absence of an order barring the 1st Respondent from nomination, it took the relevant law into account in clearing her for nomination
78.The 6th Respondent’s Submissions are dated July 12, 2022. The 6th Respondent reiterates its mandate under Article 59(4) of the Constitution, the Commission on Administrative Justice Act 2011 and as observed in Republic v Commission on Administrative Justice Ex parte Stephen Gathuita Mwangi [2017] eKLR. It maintains that it does not have the mandate to investigate issues of integrity pertaining to private persons, but rather, issues of maladministration within the public service.
79.According to the 6th Respondent, the clearance and vetting of political candidates is a function of the 3rd Respondent as provided for under Section 74(1) of the Elections Act. It relies on Nairobi Pet No E090 of 2022; Okiya Omtatah Okoiti & others v Attorney General & others (UR) and submits that that the Petitioner ought to have exhausted the mechanisms put in place by the Elections Act 2011. The 6th Respondent restates that electoral disputes are a preserve of the 3rd Respondent, and it lacks jurisdiction to entertain such a dispute.
80.In response to the issue of jurisdiction, the Petitioner filed further Submissions dated July 20, 2022. The Petitioner urges the Court to depart from the Judgment in Nairobi Pet No E090 of 2022; Okiya Omtatah Okoiti & others v Attorney General & others (cited by the 3rd and 5th Respondents). The Petitioner maintains his reliance on Samuel Kamau Macharia & Another, Evans Ladtema Muswahili and Article 165 of the Constitution. He maintains that the issues raised in his Petition are unique and require the High Court’s interpretation of Articles 99(2) and (3 with respect to the definition, applicability, and scope of the words ‘conviction’, ‘appeal’, ‘review’ and ‘decision’. He insists that this Court has the jurisdiction to hear his Petition.
81.From the foregoing, the following issues arise for determination:a.Whether this Court has jurisdiction to hear and determine this Petition. Differently put, whether the Petition is barred by the Doctrine of Exhaustion.b.If the Petition survives the jurisdictional challenge, whether the 1st Respondent fails the test of Chapter Six of the Constitution. This issue presents several sub-issues including:i.Whether the alleged tax evasion scheme by Keroche Breweries Limited can be imputed on the 1st Respondent for purposes of Chapter 6 of the Constitution of Kenya.ii.Whether a voluntary tax settlement agreement is a decision under Article 99(3) of the Constitution.iii.Whether there is evidence that the 1st Respondent failed to meet her individual tax obligations.c.What reliefs, if any, should be granted.
A. The Jurisdictional Question
82.The preliminary question for determination is whether this Court should hear the controversy presented to it in the first instance by dint of the doctrine of exhaustion.
83.The policy rationale and the constitutional role of the doctrine of exhaustion was accorded a comprehensive exegesis by a five-judge bench of the High Court in William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others [2020] eKLR in the following terms:
84.In that case, the bench cited a paragraph in R vs Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR which illuminates the policy rationale further thus:
85.It suffices to say that even in the face of Article 165 of the Constitution, which creates a powerful High Court with unlimited subject matter jurisdiction and with the specific authority to hear and determine controversies verging on constitutional interpretation and enforcement of the Bill of Rights, the doctrine of exhaustion continues to enjoy its pride of place in our jurisprudence. It is, therefore, not sufficient answer to a plea of the doctrine of exhaustion for a party to simply point to Article 165 of the Constitution without more while urging the Court to take up jurisdiction.
86.In the present case, the 1st, 2nd and 3rd Respondents have forcefully argued that the presentation of the Petition to this Court offends the doctrine of exhaustion. In particular, they have pointed the Court to Article 88 of the Constitution and the recently decided 3-judge bench decision of the High Court in Okoiti Omtatah & 15 others v Attorney General & 7 Others [2022] KEHC 3209 (KLR).
87.Article 88(4) of the Constitution provides as follows:
88.These constitutional provisions have found restatement in section 74(1) of the Elections Act as follows:
89.In Mohamed Abdi Mohamud v Ahmed Abdullahi & Others [2019] eKLR, the Supreme Court interpreted the Sub-Article of the Constitution as follows:
90.In Okoiti Omtatah & 15 others v Attorney General & 7 Others [2022] KEHC 3209 (KLR), a decision of a 3-judge bench of the High Court and the latest case to be determined on the issue, the Court, facing strikingly similar facts and issues as the ones presented in the present case, rendered itself thus:85.The net effect of this decision is that pre-election disputes such as those regarding suitability and eligibility for nomination of candidates, must be resolved by the IEBC in the first instance. The High Court’s jurisdiction is only triggered once the IEBC makes a decision on the issue.86.In the above decision, the Supreme Court was dealing with the academic qualification of a Governor under article 193 of the Constitution. On this specific issue the Supreme Court observed:(69)We believe that the foregoing principles may pave the way in streamlining the electoral dispute-resolution processes, both at the pre-election and post-election stages. Applying the reasoning in Silverse Lisamula and the majority decision in Sammy Waity [supra], alongside the foregoing principles, to the instant case, we note that a complaint had been lodged before the IEBC Dispute Resolution Committee by a Mr Abdirahman Mohamed Abdille, questioning the suitability of the petitioner to vie for the position of County Governor on account of his academic qualifications. However, this complaint was pursued no further, and was not prosecuted. As a consequence, the IEBC Dispute Resolution Committee dismissed it for want of prosecution.(70)The 1st respondent herein did not file any complaint to the IEBC, questioning the petitioner’s academic qualifications, nor did he pursue the original complaint, which had been lodged by Mohamed Abdille.87.The Supreme Court therefore emphasised that the issue of the suitability of a candidate ought to be brought before the IEBC in the first instance and pursued from there.88.Applying the above principles to the case at hand, we hold the cases concerning the named Mike Sonko, Paul Thang’wa and Samuel Arama were presented to this court prematurely.
91.The Petitioner urges this Court to depart from this reasoning – and emphasizes the need for the Court to enforce Chapter 6 of the Constitution. However, I am not persuaded to do so. Our Constitution explicitly departs from the attitude that only Courts are responsible in defending, interpreting and enforcing the Constitution. Indeed, in Article xx of the Constitution, the duty to defend the Constitution is imposed on all Kenyans.
92.It therefore follows that all state organs – including the IEBC – is obligated to interpret and enforce the Constitution in carrying out its mandate. For the IEBC, as part Article 74 as read together with Article 88 of the Constitution, that mandate must include the obligation to apply and enforce Article 99 of the Constitution when determining eligibility of citizens to run for elective office as well as when adjudicating pre-elections disputes related to such eligibility.
93.The upshot is that the Petitioner was obliged to present the substance of the Petition to the IEBC for determination. It is only if dissatisfied with the decision of the IEBC that the Petitioner ought to have approached the High Court. The Petitioner did not do so. This deprives the Court of the jurisdiction to hear and dispose of this matter.
B. The Substantive Questions Presented
94.Good judicial practice demands that once the Court has determined that it has no jurisdiction, it must down its tools for anything it says or decides beyond there is of no legal consequence. As Justice Nyarangi famously stated 'jurisdiction is everything [and] a Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.' (Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1).
95.For this reason, I will not delve into the substantive issues presented in the case save to point out that the 1st Respondent obtained and presented to the 3rd Respondent a Tax Compliance Certificate issued by the 5th Respondent. Throughout these proceedings, that Tax Compliance Certificate – which must be taken by a Court of law absent proof that it was obtained fraudulently or is a forgery as prima facie evidence that the 1st Respondent is in good standing as compliant with our tax laws.
96.In any event, as aforesaid, it is imprudent for this Court to go any deeper into the issues raised by the Petitioner. Suffice to say that the Petition is one for dismissing, which I hereby do – but without relish or glee.
97.Since the Petitioner acted in an attempt to safeguard and enforce the Constitution, I will hold that there will be no order as to costs: each party will bear its own costs.
98.Orders accordingly.
DATED AT KAKAMEGA THIS 5TH DAY OF OCTOBER, 2022
………………………JOEL NGUGIDelivered at Nakuru this 6th day of October, 2022……………………………HILLARY CHEMITEIJUDGE
………………………JOEL NGUGIDelivered at Nakuru this 6th day of October, 2022……………………………HILLARY CHEMITEIJUDGE