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Onyango v Independent Electoral & Boundaries Commission Dispute Resolution Committee & 4 others (Constitutional Petition 4A of 2022) [2022] KEHC 9821 (KLR) (15 July 2022) (Judgment)

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Onyango v Independent Electoral & Boundaries Commission Dispute Resolution Committee & 4 others (Constitutional Petition 4A of 2022) [2022] KEHC 9821 (KLR) (15 July 2022) (Judgment)
Citation
Onyango v Independent Electoral & Boundaries Commission Dispute Resolution Committee & 4 others [2022] KEHC 9821 (KLR)
Media Neutral Citation
[2022] KEHC 9821 (KLR)
Court
High Court
Court station
High Court at Migori
Outcome
Allowed
Case number
Constitutional Petition 4A of 2022
Judges
RPV Wendoh
Judgment date
15 July 2022
Language
English
Type
Judgment
Collections
Date published
25 July 2022
Case action
Judgment
Court division
Civil
Filing county
Migori
Order
(a) a declaration issued, that the 1st Respondent’s decision made on the 16th June, 2022 revoking the nomination of the Petitioner to contest for the position of Member of National Assembly, Rongo Constituency under the Jubilee Party ticket in 9th August,2022 elections without according the Petitioner a right to be heard was unlawful and in violation of the Petitioner’s right to fair administration action and fair hearing under Articles 19,22,23,24,38,47,50,159 and 259 of the Constitution and rules of natural justice. (b)that a declaration issued that the Petitioner was validly cleared by the 3rd Respondent and duly nominated to contest for the position of Member of National Assembly, Rongo Constituency under the Jubilee Party ticket in the 9th August, 2022 elections. (c)that a declaration issued that the 1st Respondent committee conflicted itself when it unlawfully relied on the inadmissible and extraneous evidence of the representative of Registrar of Political Parties one Mr. Nyongesa, attached to the panel in rendering its decision dated 16th June, 2022 without according the Petitioner opportunity to cross examine him or respond to the information he provided to the Committee was unlawful and in violation of section 35 and 107 of the evidence Act Cap 80 laws of Kenya and Article 50 of the Constitution. ( d) a declaration issued that the 1st Respondent committee’s decision to rely on the uncertified photocopies of correspondence allegedly authored by the 4th Respondent without calling the author was unlawful and in violation of section 83 of the evidence Act Cap 80 laws of Kenya. (e) a declaration issued that, the 1st Respondent’s refusal to allow the petitioner to file a response on the grounds that he was not sufficiently pleaded was a violation of the Petitioners right to fair hearing under Article 50 of the Constitution and rules of natural justice. (f) a declaration issued that the proceedings and decision of the 1st Respondent violated Article 2 (4),12,25,35,38(3),47, and 50 of the Constitution in relation to the petitioner. (g) a declaration issued that the 1st Respondent violated the Petitioner’s right to a fair hearing by introducing and relying on extraneous evidence and basing its decision on the same without granting the respondent a right to respond to the same contrary to the law. (h) a Judicial Review order of Certiorari granted to remove and quash the decision and ruling of the 1st Respondent the Independent Electoral and Boundaries Commission Dispute Resolution Committee delivered on the 16th June 2022 revoking the clearance and nomination of the Petitioner as the Jubilee Party Candidate for Member of National Assembly seat for Rongo Constituency by the 3rd Respondent in the 9th August, 2022 elections. (i) a Judicial Review order of Mandamus directed to the 2nd respondent, the Independent Electoral and Boundaries Commission, to include the name of the Petitioner in the gazette notice naming the candidates in the 9th August, 2022 general elections as a candidate for the position of Member of Parliament Rongo Constituency for 2022 election. (j) a Judicial Review order of Mandamus directed to the 2nd Respondent, the Independent Electoral and Boundaries Commission to include the name of the Petitioner as candidate in the 9th August,2022 general elections for the position of Member of National Assembly for Rongo Constituency, ( k) cost of this petition to the Petitioner
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1.Oluoch Nelson Onyango the petitioner herein, filed the instant petition dated 21/6/2022. He is one of the contestants for the Member of Parliament seat Rongo Constituency in the forthcoming general elections of 9/8/2022. The petitioner is aggrieved by the decision of the Independent Electoral and Boundaries Commission Dispute Resolution Committee in Complaint No. 97 of 2022 dated and delivered on 16/6/2022.
2.The petition is supported by the affidavit sworn and dated 21/6/2022, a further affidavit sworn on 30/6/2022 and another further affidavit dated 13/7/2022. The petition is further supported by the written submissions dated 6/7/2022 and supplementary written submissions dated 13/7/2022
3.The petitioner’s case is that on 31/5/2022, he presented himself as the Jubilee Candidate nominee for the Rongo Constituency Member of Parliament seat to the 3rd respondent; that the Returning Officer of the Rongo Constituency certified his candidature and issued him with a clearance certificate. Consequently, the 5th respondent lodged a dispute with the 1st respondent being a complaint dated 6/6/2022 and sought for revocation of the clearance certificate issued to the petitioner vide Complaint No. 97 of 2022 Nicholas Ouma Mbago vs Nelson Onyango Oluoch, Independent Electoral and Boundaries Commission, Returning Officer, Rongo Constituency & Registrar of Political Parties.
4.It was further contended that the 5th respondent’s complaint was that the petitioner’s clearance was improper and /or irregular for the reasons that the 3rd respondent cleared the petitioner to contest for the Position of National Assembly Rongo - Constituency as Jubilee Party Candidate whereas the petitioner was an Independent Candidate as at 29/5/2022; that upon being served with the Complaint, the petitioner attended before the 1st respondent’s committee proceedings accompanied by his advocates but the 1st respondent pronounced itself that since the petitioner was pleaded as a respondent and not an interested party, he could not be heard and therefore he was condemned unheard. The petitioner contended that it was the 1st respondent’s position that for the purposes of the proceedings before it, the Returning Officer was the only known respondent. The court was called upon to take judicial notice of the 1st respondent’s proceedings to appreciate this fact.
5.On the issue of his candidature, the petitioner pleaded that he neither tendered his resignation as a member of Jubilee Party nor registered as an independent candidate as was alleged by the complainant in the said complaint; that at the time of the alleged resignation, the petitioner was out of the country in Zimbabwe and no evidence of resignation was tendered before the committee by the complainant; that the petitioner neither tendered any application to the 4th respondent as an independent candidate nor paid any registration fees to the 4th respondent and no such evidence was tendered before the 1st respondent.
6.Further, it is the petitioner’s contention that the 1st respondent’s committee erred in law when it unlawfully admitted and relied on photocopies of alleged correspondences from the 4th respondent contrary to section 35 of the Evidence Act; that the petitioner made an inquiry from the office of the 4th respondent on the authenticity of the letters but the 4th respondent could not confirm the same; that the 1st respondent conflicted itself when it unlawfully admitted and relied on extraneous evidence of the office of the 4th respondent’s representative attached to the 1st respondent’s committee panel one Mr. Nyongesa who was neither a witness nor a party to the proceedings hence violating his right to a fair hearing; that the 1st respondent took advantage of the 3rd respondent’s complacencies to admit both inadmissible documentary and oral evidence hence arriving at an erroneous decision.
7.Further to the foregoing, the petitioner stated that the complainant consequently sought from the 1st respondent to nullify, revoke and/or cancel the clearance certificate dated 31/5/2022 issued to the petitioner by the 3rd respondent; that in its decision of 16/6/2022, the 1st respondent found that the Complaint had merit and proceeded to revoke the petitioner’s clearance by the 3rd respondent. The petitioner stated that he was aggrieved by the decision of the committee which largely violated his constitutional rights under the Bill of Rights which prompted the instant petition.
8.The petitioner further specified that his constitutional rights under Articles 22 (1) and (2) (b), 20 and 47, 50, 27, 23 and 165 (6), 24 159 and 259 of the Constitution were violated. The petitioner therefore prayed for the following orders: -1.A declaration be and is hereby issued, that the 1st Respondent’s decision made on the 16th June, 2022 revoking the nomination of the Petitioner to contest for the position of Member of National Assembly, Rongo Constituency under the Jubilee Party ticket in 9th August, 2022 elections without according the Petitioner a right to be heard is unlawful and in violation of the petitioner’s right to fair administration action and fair hearing under Articles 19,22,23,24,38,47,50,159 and 259 of the Constitution and rules of Natural Justice.2.A declaration be and is hereby issued that the Petitioner was validly cleared by the 3rd Respondent and duly nominated to contest for the position of Member of National Assembly, Rongo Constituency under the Jubilee Party ticket in the 9th August,2022 elections.3.A declaration be and is hereby issued that the 1st Respondent committee conflicted itself when it unlawfully relied on the inadmissible and extraneous evidence of the representative of Registrar of Political Parties one Mr. Nyongesa, attached to the panel in rendering its decision dated 16th June, 2022 without according the Petitioner an opportunity to cross examine him or respond to the information he provided to the Committee is unlawful and in violation of section 35 and 107 of the evidence Act Cap 80 laws of Kenya and Article 50 of the Constitution.4.A declaration be and is hereby issued that the 1st Respondent committee’s decision to rely on the uncertified photocopies of correspondences allegedly authored by the 4th Respondent without calling the author is unlawful and in violation of section 83 of the evidence Act Cap 80 laws of Kenya.5.A declaration that, the 1st Respondent’s refusal to allow the Petitioner to file a response on the grounds that he was not sufficiently pleaded was a violation of the Petitioners’ right to fair hearing under Article 50 of the Constitution and rules of natural justice.6.A declaration that the proceedings and decision of the 1st Respondent violated Article 2 (4),12,25,35,38(3),47, and 50 of the Constitution in relation to the Petitioner.7.A declaration that the 1st Respondent violated the Petitioner’s right to a fair hearing by introducing and relying on extraneous evidence and basing its decision on the same without granting the respondent a right to respond to the same contrary to the law.8.A Judicial Review order of Certiorari to remove into this Honourable Court and quash the decision and ruling of the 1st Respondent, the Independent Electoral and Boundaries Commission Dispute Resolution Committee delivered on the 16th June 2022 revoking the clearance and nomination of the Petitioner as the Jubilee Party Candidate for Member of National Assembly seat for Rongo Constituency by the 3rd Respondent in the 9th August, 2022 elections.9.A Judicial Review order of Mandamusdirected to the 2nd Respondent, the Independent Electoral and Boundaries Commission, to include the name of the Petitioner in the gazette notice naming the candidates in the 9th August, 2022 general elections as a candidate for the position of Member of Parliament Rongo Constituency for 2022 election.10.A Judicial Review order of Mandamusdirected to the 2nd Respondent, the Independent Electoral and Boundaries Commission to include the name of the Petitioner as candidate in the 9th August, 2022 general elections for the position of Member of National Assembly for Rongo Constituency.11.Costs of this petition.12.Any other relief that this court may deem necessary to grant.
9.In the petitioners’ further affidavit of 30/6/2022, the petitioner deponed that he wrote to the office of the 4th respondent seeking clarity on the documents used by the 5th respondent in his Complaint before the 1st respondent; that there was no response from the office of the 4th respondent and it is only the 4th respondent who can verify to this court the authenticity of the documents relied on by the 5th respondent either by way of an affidavit, a certificate, certification of the copies presented to court and also producing the documents themselves as makers but not the 5th respondent; that in the absence of such verification, the 1st respondent ought not to have relied on them in making its findings.
10.The petition was opposed. The 1st, 2nd and 3rd respondents entered appearance through the firm of Now Advocates LLP. They filed a replying affidavit sworn on 6/7/2022 through Mr. Chrispine Owiye, an Advocate of the High Court of Kenya and the Director of Legal Services of the 2nd respondent. He disputed the averments in paragraph 5 of the petition and stated that the petitioner through his Advocate was given sufficient time to address the committee which he did and confirmed his satisfaction as evidenced by the proceedings before the committee. Counsel referred this court to page 12, 13, 14 and 16 of the proceedings and stated that the allegations that he was condemned unheard lacks basis and merit.
11.Further, it was deponed that although in the first instance, the 3rd respondent was satisfied that the petitioner had met all the requirements, he had no way of establishing their veracity beyond that which was placed before him; that the revocation of the nomination certificate was lawful because the same was a mere correction of an error that had been committed by the 2nd respondent which error called for rectification. Counsel emphasized that the 1st, 2nd and 3rd respondents were exercising their powers under Articles 88 (5), 90, 177 of the Constitution as read together with Sections 34, 35, 36 and 37 of the Elections Act, 2022 and Regulation 54, 55 and 56 of the Elections (General) Regulations, 2012 and Regulation 26 of the Election (Party Primaries and Party Lists) Regulations 2017 which mandates it to revoke and recall a nomination certificate if the same is found to have been obtained fraudulently. He stated that the petition has no merit and should be dismissed.
12.The 4th respondent through its Counsel Ms. Joy Onyango an Advocate of the High Court of Kenya and its Compliance Officer, filed a replying affidavit sworn on 4/7/2022. It was deponed that in line with Section 28 of the Elections Act, political parties submitted to the 4th respondent their respective party membership lists for purposes of certification which they forwarded to the Independent and Boundaries Commission; that the certified party membership of the Jubilee Party included the petitioner as its candidate.
13.It was further deponed that the petitioner’s political party membership history is that he was a member of Orange Democratic Movement from 24/7/2019 until 21/3/2022 when he resigned; that he was a member of Jubilee Party from 21/3/2022 up until 26/4/2022 and he resigned from the Jubilee Party by virtue of having applied for clearance with the intention of vying as an independent candidate on 26/4/2022. Counsel stated that with respect to the ODM Party resignation, the petitioner resigned through a self-executing process using his phone number 0727xxxxxx; that with respect to the Jubilee Party Membership, the petitioner was recruited using the aforementioned cell phone number. The petitioner then submitted proposed symbols to the 4th respondent to contest as an independent candidate and linked the petitioner’s application through the said phone number. It was further stated that all persons who made applications in terms of submitting proposed symbols for certification as not resembling symbols of political parties and certification that they are not members of political parties were being updated through messages and the petitioner was updated using the said phone number.
14.Counsel deposed that the petitioner was updated of the status of his application through his number from the point of lodging the application; and payments in relation the petitioner’s application was done by one Dickence Onyango Ojwang of mobile number 0700xxxxxx. Subsequently, the 4th respondent developed letters for the petitioner on the symbol and clearance for not having been a member of a political party as required in the electoral timelines.
15.The 5th respondent filed a response to the petition through the firm of Omoiti & Partners. The 5th respondent deponed that he served the Complaint upon the petitioner but he neither entered appearance nor filed a response to the Complaint; that the 1st respondent was at a loss which party the petitioner’s Counsel was representing since he had not filed any documents. It was stated that the 1st respondent still acknowledged the presence of the petitioner as a respondent and not as an interested party as alleged.
16.Further, it is the 5th respondent’s position that the said correspondences and documents were not in dispute and the petitioner did not raise any objection to the validity or authenticity of the said correspondences. It was also averred that at the hearing of the petition, the petitioner would be put to strict proof pursuant to the principles outlined in Anarita Karimi Njeru v Republic. The 5th respondent further asserted that the petitioner was granted an opportunity to be heard and address the 1st respondent and it is confirmed at page 55 of the proceedings that “he had represented his client”; that the petitioner has not pleased with reasonable precision as required in the Anarita Karimi Case how the respondents violated his constitutional right to be heard; that the petitioner failed to file any proper responses to the Complaint before the 1st respondent and thus shut the door on himself.
17.In the petitioner’s further affidavit of 13/7/2022, he pointed out that the contents of the 4th respondent’s replying affidavit to the effect that it sent messages to his mobile number, the same evidence is not verifiable and it was never tendered before the 1st respondent for consideration; that the 5th respondent’s documents are irregular on record as the Counsel did not file a notice of appointment as required in law; that the said Dickens Onyango Ojwang who paid for his application for resignation is a stranger to him.
18.The 5th respondent filed grounds of opposition dated 13/7/2022. His grounds mainly centered on the evidence which the petitioner has introduced at this stage of the proceedings. The 5th respondent stated that the further affidavit sworn on 13/7/2022 should be struck out. On the issue of the said affidavit, The court gave a ruling on 12/7/2022 and allowed the further affidavit to be admitted on record as duly filed and properly on record.
19.I have certainly read and understood the petition, the affidavits both in support and in opposition of the petition, the supporting documents produced by the respective parties as well as the submissions and the cited authorities. The issues for determination are thus:-i.Whether the 5th respondent’s responses are properly on record.ii.Whether there was breach of the petitioner’s rights to fair hearing before the 1st respondent.
20.The petitioner, in his further affidavit of 13/7/2022, raised an issue on paragraph 8 that the 5th respondent did not file a notice of appointment of advocates as required by law hence they should be struck out.
21.Order 9 Rule 1 of the Civil Procedure Rules provides as follows:-“Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by a party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf: Provided that-(a)Any such appearance shall, if the court so directs, be made by the party in person; and(b)Where the party whom the application, appearance or act is required or authorized to be made or done is the Attorney – General or an officer authorized by law to make or to do such application, appearance or act for and on behalf of the Government, the Attorney – General or such officer, as the case may be, may by writing under his hand depute an officer in public service to make or to do any such application, appearance or act.”
22.From the reading of the above provision, my understanding is that there is nothing which compels a party to file a formal Notice of Appointment of Advocates. The Order which requires and makes it mandatory for a party to file a Notice of Appointment is Order 9 Rule 7 which states:-“Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of an advocate shall apply to a notice of appointment of an advocate with the necessary modifications.”
23.The above provision is clear that the circumstances where a party after suing or defending a suit in person, appoints an Advocate to act in the case or matter on his behalf, he/she shall give Notice of Appointment of Advocates or Notice of Change of an Advocate as the case may be.
24.In the case of Iway African Limited vs Infonet Africa Limited & Another (2019) eKLR regarding the requirement to file a Notice of Appointment it was held as follows:-“The most important, consideration to be heard in a matter is for a party to give its description and provide full details of address for ease of service; and once that is done, its clear where to serve the party and who is representing the party, a Notice of Appointment of Advocates which would give the same information would add no value to the matter nor would change anything as far as the representation of the party and address of the same is concerned.”
25At the tail end of the petition, the petitioner indicated that the 5th respondent address of service would be through the firm of Omoiti & Partners. In the Affidavit of Service dated 23/6/2022 by one Azaria Akello, he deponed that he effected service on the firm of Omoiti & Partners and the documents were received personally by Learned Counsel Mr. Omoiti. That in itself was a clear indication that the petitioner was certain that the firm of Omoiti was on record for the 5th respondent. If at all the firm of Omoiti was not keen on representing the 5th respondent, they would not have filed any responses and/or make any appearances in court. The incoming firm of Advocates would then be required to file a Notice of Appointment of Advocates if at all the 5th respondent was not acting in person. It is this court’s finding that the documents filed on behalf of the 5th respondent are properly on record.
26.The petitioner preferred this Constitutional petition challenging the manner in which the 1st respondent conducted its proceedings in Complaint No. 97 of 2022 Nicholas Ouma Mbago vs Nelson Onyango Oluoch, Independent Electoral and Boundaries Commission, Returning Officer, Rongo Constituency & Registrar of Political Parties.
27.The petitioner’s case is that he was condemned unheard contrary to the principles of natural justice. He also averred that his rights under the Constitution were violated and in particular, he was not accorded a fair hearing as envisaged under Article 50 of the Constitution, he was also not accorded a fair administrative action under Article 47 of the Constitution, the 1st respondent relied on extraneous evidence and therefore he was condemned unheard.
28The 1st, 2nd, 3rd, and the 5th respondents put a united front and asked this court to consider pages 12, 13, 14 and 16 of the proceedings before the 1st respondent where Counsel for the petitioner was given an opportunity to address the 1st respondent.
29.The Halsbury’s Laws of England, 5th Edition 2010 Vol. 61 at para. 639 states:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice…”
30.The right to fair hearing/trial is considered a basic human right which is universal and inalienable. Article 25 (c) of the Constitution provides: -“25.Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—(a)…(b)…(c)the right to a fair trial.”
31.On the right to be heard, it was held as follows in Msagha vs. Chief Justice & 7 Others Nairobi HCMCA No. 1062 of 2004 (Lessit, Wendoh & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR at page 553:-“The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialisation of the globe during the hey-days we of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice. The decision must be declared to be no decision…It is paramount at this juncture that this court establishes the ingredients and/or components of natural justice. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker. Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. The ingredients of fairness or natural justice that must guide all administrative decisions are, firstly, that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker; secondly, that no one ought to be judge in his or her case and this is the requirement that the deciding authority must be unbiased when according the hearing or making the decision; and thirdly, that an administrative decision must be based upon logical proof or evidence material.
32.In Republic vs. the Honourable the Chief Justice of Kenya & Others Ex Parte Justice Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004 it was held:-“The right to be heard has two facts, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to the individuals or groups, against whom decisions taken by public authorities operate, to participate in the proceedings by which those decisions are made, an opportunity to express their dignity as persons. The ordinary rule which regulates all procedures is that persons who are likely to be affected by the proposed/likely action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it and such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.”
33.The first interaction of Counsel with the 1st respondent is on page 9 of the proceedings. Counsel addressed the court as follows: -“Mr. Chairman, for clarification, I came on record for Nelson Oluoch who is the JP candidate in Rongo but I was busy in another court upstairs. I have just popped in while you were proceeding. Following your earlier direction, you said that we do not have a right to address the court as the respondent, but we can only come in as an interested party. I do know whether the direction or I can address the court, because tis matter is also pending before the Migori High Court.”
34.There was no direct response given to Counsel for the petitioner but the Chairman of the 1st respondent proceeded to listen to the testimony of the Returning Officer. The query by Counsel was answered on page 13 of the proceedings where the Chairman addressed Counsel as follows:-“I have both good news and bad news for you. The good news is that you are here. In the Isiolo matter we had, the complainant himself had listed other people as interested parties. When you do that, we try and give some little time to the listed people to say something. We have made a decision among all the three panels that due to the time factor that is involved, we are not going to allow anybody on board who is not listed by the complainant. We have looked at the complaint and we see that Nicholas Ouma Mboga is the complainant, Oluoch Onyango listed as the 1st respondent, the RO the 3rd respondent and the ORPP as the interested party. You are not listed as an interested party. If you had been listed, we would have given you a right to reply. For you to have a right to say something, you must first apply to be joined as an interested party, which we have been saying we are unwilling to do so. Let us make a decision on this matter based on which the complainant has listed. I have said so that it goes on record….if it reaches the High Court, you can say that you were present but we did not accord you an opportunity on the basis that you had not been listed. That is the bad news.”
35.It is clear from the above proceedings that the Chairman of the 1st respondent was not intent or keen on listening to the petitioner on the basis that he was named as a respondent instead of an interested party. The question which the 1st respondent would have asked itself is whether the improper or proper naming of a party before it would cause any prejudice to the rest of the parties on record. It is not the petitioner who filed the Complaint but he was simply named as a respondent. The outcome of the Complaint, whether positive or not, would have impacted his Candidature as an aspirant in the Member of Parliamentary Seat, Rongo Constituency. It was only proper that the petitioner despite being named as a respondent, be given an opportunity to state his case.
36.In any event, the 1st respondent is established under the Constitution and it was performing its duties under Article 88 (4) (e) of the Constitution. In carrying out its mandate, the 1st respondent is first and foremost guided and bound by the National Values and Principles of Governance enunciated under Article 10 of the Constitution. Article 159 of the Constitution demands that justice should be done without undue regard to procedural technicalities. The technicality in question was that the petitioner was named as a respondent as opposed to an interested party. As I have mentioned before, it was not his fault that he was named as a respondent and not as an interested party. The petitioner could not have made a separate application to have himself come on record as an interested party while he was already named as a party. The finding of the 1st respondent in denying audience to the petitioner was unfair and irrational.
37.In addition, the 1st respondent did not point the petitioner or any of the parties before it, to any Law, Regulations or Rules which makes it mandatory for a person like him to be named as an interested party and not as a respondent. If there was such a provision, the proper finding of the 1st respondent would have been to strike out the Complaint for being incompetent since they cannot go ahead and make a decision which would adversely affect a party not properly pleaded before it and ask the Complainant to file a fresh Complaint and name all the persons properly. In the alternative, ask the Complaint to amend his pleadings or guide the litigants on the proper procedure before it and rename the parties accordingly.
38.It might be argued that Counsel for the petitioner was given some 3 minutes to address the committee as evidenced at pages 14 - 15 of the proceedings. It should be noted that the Complainant’s Counsel was given a considerably long time to address the 1st respondent as opposed to Counsel for the petitioner. Given the length of the proceedings, it can be speculated that the proceedings took about 30 minutes or so. Giving Counsel some three minutes to address it, is an indication of open bias and discrimination against the petitioner. The allegations against the petitioner were grave and it would have been prudent for all parties to be allowed to put substantive responses and present witnesses if need. Giving the petitioner’s Counsel some 3 minutes to answer to the case cannot be termed as being heard fairly and adequately. There was some element of bias on the part of the 1st respondent to the petitioner. Article 45 (c) of The African Commission on Human and People’s Rights provides one of the elements of a fair hearing as follows:-“2(e) adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence;”
39.Similarly Article 50 (2) (c) of the Constitution provides that every person has a right to a fair trial which includes: -“To have adequate time and facilities to prepare a defence.”
40.The foregone position is that the 1st respondent breached the petitioner’s right to be heard contrary to Article 50 of the Constitution and did not accord the petitioner a right to Fair Administrative Action contrary to Article 27 of the Constitution.
41.The petitioner also faulted the 1st respondent for relying on extraneous evidence and in particular, of one Mr. Nyongesa who is the 4th respondent’s representative attached to that particular panel. This position has been reflected in paragraph 22 on page 6 of the decision. In the preceding paragraphs, the committee had sought to know the correct position of the petitioner’s party membership and they called on Mr. Nyongesa to clarify for them the position. It is also noted that in its decision, the 1st respondent did not make any reference to the documents which were filed before it but rather sought information from Mr. Nyongesa.
42.The Office of the Registrar of Political Parties was not named as party to the Complaint that was before the 1st respondent. It is not in denial that the crux of the matter before the 1st respondent was on the eligibility of the petitioner to vie as a Member of Parliament Rongo Constituency. As it was correctly deponed to by the 4th respondent’s Counsel in the replying affidavit dated 4/7/2022 before this court, they are tasked with the responsibility of verifying the status of all contesting Candidates and submitting the same to the office of the 2nd respondent. The 2nd respondent receives the names as they are and publishes them. There is nowhere the 1st, 2nd and 3rd respondents are tasked with the duty to verifying the status of a candidate to run for a political seat suo moto. If they were to take up that task; they would be usurping the roles and powers of the 4th respondent.
43.If at all the 1st respondent deemed it important to verify the status of the petitioner, it should have called the representative attached to it and ask him to either tender oral evidence before it or evidence by way of affidavit so that the parties could have responded to it. Further, the communication which was made in the decision by the 1st respondent was conveyed to it orally. It is not even certain whether the findings that the 1st respondent made in relation to that communication was a true reflection of what Mr. Nyongesa said. It is also not even clear if the said Mr. Nyongesa is an employee of the 4th respondent or an authorized person who is supposed to divulge information on behalf of the 4th respondent.
44.The Court of Appeal in Vyas Industries vs Diocese of Meru (1976) eKLR quoted with approval the East African Court of Appeal Case Odd Jobs vs Mubia (1970) EA 476 in which it was held that:-a)A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision;b)On the facts, the issue has been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it.
45.The two principles which emerge in an instance where a court decides on an extraneous issues are: First, evidence has to be led on that issue during the trial and secondly the issue has to be addressed in court. In the case before the 1st respondent, there was no proper evidence tendered before it on the candidature of the petitioner. Even if it can be argued that there was, the evidence relied on from one Mr. Nyongesa was not properly tendered before the committee and it was not subject to cross examination by the parties especially the petitioner who was to be directly affected by the decision. It is this court’s finding that the 1st respondent relied on extraneous issues not before it and by a person who was neither a party nor a witness before it.
46.The petitioner called upon this court to make Judicial Review Orders of Certiorari to quash the decision and ruling of the 1st respondent. The concern of Judicial Review proceedings were succinctly put in the cases of:- Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 it was held:-“Judicial review is concerned with the decision-making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”
47.In Republic vs. The Retirement Benefits Appeals Tribunal Ex Parte Augustine Juma & 8 others [2013] eKLR, it was held that: -“...it must be remembered that the function of this court sitting in judicial review is not concerned with the merits of the decision…I will add that judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. Once a body is vested with the power to do so something under the law, then there is room for it to make that decision, wrongly as it is rightly. That is why there is the appellate procedure to test and examine the substance of the decision itself. It follows, therefore, that the correctness or ‘wrongness’ or error in interpretation or application of the law is not appropriately tested in judicial review forum. In simple terms, a ‘wrong’ decision done within the law and in adherence to the correct procedure can seldom be said to be ultra vires as to attract remedy for the prerogative writs. The Court of Appeal in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others, CA Civil Appeal 145 of 2011 [2012] eKLR expressed this view as follows; Moreover, where the proceedings are regular upon their face and the inferior tribunal has jurisdiction in the original narrow sense (that is, to say, it has power to adjudicate upon the dispute) and does not commit any of the errors which go to jurisdiction in the wider sense, the quashing order (certiorari) will not be ordinarily granted on the ground that its decision is considered to be wrong either because it misconceived a point of law or misconstrued a statute (except a misconstruction of a statute relating to its own jurisdiction) or that its decision is wrong in matters of fact or that it misdirects itself in some matter...”
48.This court is satisfied that the decision-making process of the 1st respondent in reaching its findings was unprocedural and unfair. The petitioner has made a case to be granted orders of Certiorari to remove this court and quash the decision of the 1st respondent on Complaint No. 97 of 2022 Nicholas Ouma Mbago vs Nelson Onyango Oluoch, Independent Electoral and Boundaries Commission, Returning Officer, Rongo Constituency & Registrar of Political Parties dated and delivered on 16/6/2022.
49.Therefore, the resultant orders are as follows:-1.Thata declaration be and is hereby issued, that the 1st Respondent’s decision made on the 16th June, 2022 revoking the nomination of the Petitioner to contest for the position of Member of National Assembly, Rongo Constituency under the Jubilee Party ticket in 9th August,2022 elections without according the Petitioner a right to be heard is unlawful and in violation of the Petitioner’s right to fair administration action and fair hearing under Articles 19,22,23,24,38,47,50,159 and 259 of the Constitution and rules of natural justice.2.That a declaration be and is hereby issued that the Petitioner was validly cleared by the 3rd Respondent and duly nominated to contest for the position of Member of National Assembly, Rongo Constituency under the Jubilee Party ticket in the 9th August, 2022 elections.3.That a declaration be and is hereby issued that the 1st Respondent committee conflicted itself when it unlawfully relied on the inadmissible and extraneous evidence of the representative of Registrar of Political Parties one Mr. Nyongesa, attached to the panel in rendering its decision dated 16th June, 2022 without according the Petitioner opportunity to cross examine him or respond to the information he provided to the Committee is unlawful and in violation of section 35 and 107 of the evidence Act Cap 80 laws of Kenya and Article 50 of the Constitution.4.That a declaration be and is hereby issued that the 1st Respondent committee’s decision to rely on the uncertified photocopies of correspondence allegedly authored by the 4th Respondent without calling the author is unlawful and in violation of section 83 of the evidence Act Cap 80 laws of Kenya.5.That a declaration be and is hereby issued that, the 1st Respondent’s refusal to allow the petitioner to file a response on the grounds that he was not sufficiently pleaded was a violation of the Petitioners right to fair hearing under Article 50 of the Constitution and rules of natural justice.6.That a declaration be and is hereby issued that the proceedings and decision of the 1st Respondent violated Article 2 (4),12,25,35,38(3),47, and 50 of the Constitution in relation to the petitioner.7.That a declaration be and is hereby issued that the 1st Respondent violated the Petitioner’s right to a fair hearing by introducing and relying on extraneous evidence and basing its decision on the same without granting the respondent a right to respond to the same contrary to the law.8.That a Judicial Review order of CERTIORARI be and is hereby granted to remove and quash the decision and ruling of the 1st Respondent the Independent Electoral and Boundaries Commission Dispute Resolution Committee delivered on the 16th June 2022 revoking the clearance and nomination of the Petitioner as the Jubilee Party Candidate for Member of National Assembly seat for Rongo Constituency by the 3rd Respondent in the 9th August, 2022 elections.9.That a Judicial Review order of Mandamus be and is hereby directed to the 2nd respondent, the Independent Electoral and Boundaries Commission, to include the name of the Petitioner in the gazette notice naming the candidates in the 9th August, 2022 general elections as a candidate for the position of Member of Parliament Rongo Constituency for 2022 election.10.That a Judicial Review order of Mandamus be and is hereby directed to the 2nd Respondent, the Independent Electoral and Boundaries Commission to include the name of the Petitioner as candidate in the 9th August,2022 general elections for the position of Member of National Assembly for Rongo Constituency,11.That cost of this petition to the Petitioner.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 15TH DAY OF JULY 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Adawo for the Petitioner.Ms. Cherotich for the 1st, 2nd and 3rd Respondents.Ms. Akoth for the 4th RespondentMr. Omoiti for the 5th RespondentNyauke Court Assistant
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