The National Land Commission, the County and National Governments are barred from dealing with land held, used or occupied by a State organ

Law Society of Kenya v Kinyua, Head of Public Service & 5 others; Migot-Adholla & another (Interested Party) (Environment & Land Petition E029 of 2022) [2022] KEELC 3962 (KLR) (12 August 2022) (Ruling)
Neutral citation: [2022] KEELC 3962 (KLR)
OA Angote, J
Reported by Kakai Toili
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Summary Significance: The petitioner filed the instant application seeking to stay the enforcement of directives issued to the Vice-Chancellor of Kenyatta University to surrender the University’s title deed to effectuate transfer of portions of its land to various institutions. The court held among others that; the National Government, the County Government and the National Land Commission were barred from dealing with land held, used or occupied by a national State organ. The court also held that letters by the Head of Public Service and any purported Cabinet resolution with regard to the University’s land amounted to being a request to the University’s Council to set aside the land for public purpose.
Constitutional Law – constitutional commissions – National Land Commission (NLC) – powers of the NLC - whether the NLC could allocate land held, used or occupied by a national State organ on behalf of the National or County Governments – what was the rationale for exclusion of the National Land Commission, the National and County Governments from dealing with land held, used or occupied by a national State organ - what was the effect of a Cabinet resolution to alienate land belonging to a university - Constitution of Kenya, 2010, articles 62(2) and (3); Land Act, 2012 section 12.
Constitutional Law – constitutional petitions – institution of constitutional petitions - whether an entity which was not part of a university’s council had the locus standi to institute a constitutional petition challenging an alienation of the university’s land – Constitution of Kenya, 2010, article 22 and 258.
Civil Practice and Procedure- orders – conservatory orders - what was the nature of conservatory orders.
Constitutional Law– fundamental rights and freedoms – economic and social rights – right to housing – when did the right to housing over public land crystallize – Constitution of Kenya, 2010, article 60(1)(a).
Words and Phrases - locus standi – definition of locus standi- the right to bring an action or to be heard in a given forum - Black’s Law Dictionary, 9th Edition.

Brief facts:
The petitioner filed the instant application seeking to stay the enforcement of the directives contained in the letters of July 4 and 7, 2022 and or the sub division, alienation or interference with the ownership of the suit property. The letter of July 4, 2022 informed the Vice Chancellor-Kenyatta University (2nd interested party) that the Cabinet had approved allocation of the suit property to various institutions. The letter, signed by the 1st respondent, requested the University to surrender its title deed to the Ministry of Lands and Physical Planning to effectuate the transfer whereas the letter of July 7, 2022 reiterated what was contained in the earlier letter.
According to the petitioner, the University was the registered owner of the suit property and as such, its proprietary rights were protected and that a university granted a charter was a body corporate capable of acquiring, holding and disposing off immovable property. The petitioner’s case was that the 1st respondent’s actions were akin to compulsory acquisition of the suit property without following due process and that it was only the 4th respondent, the National Land Commission (NLC) who was mandated to initiate the process of compulsory acquisition of the suit property.
The petitioner further argued that the NLC and the public, pursuant to sections 12 and 14 of the Land Act, should have been involved in the allocation of a portion of the suit property to the World Health Organization (WHO), Africa Centre for Disease Control (ACDC), Kenyatta University Teaching and Referral Hospital (KUTRH) and the Ministry of Lands and Physical Planning to settle the squatters at Kamae.
The respondents took the position that the suit property was public land which was allocated to the University by the Government; that the Government had an unfettered right to compulsorily acquire public land, which acquisition could be done administratively and that the University was not eligible for compensation because it was a public body holding the land in trust for the public.

Issues:
  1. Whether the National Land Commission could allocate land held, used or occupied by a national State organ on behalf of the National or County Governments.
  2. What was the rationale for exclusion of the National Land Commission, the National and County Governments from dealing with land held, used or occupied by a national State organ?
  3. What was the effect of a Cabinet resolution to alienate land belonging to a university?
  4. Whether an entity which was not part of a university’s council had the locus standi to institute a constitutional petition challenging an alienation of the university’s land.
  5. What was the nature of conservatory orders ?
  6. When did the right to housing over public land crystallize?

Relevant provisions of the law
Land Act, 2012
(1) .. Whenever the national or county government is satisfied that it may be necessary to allocate the whole or part of a specific public land, the Cabinet Secretary or the County Executive Committee member responsible for matters relating to land shall submit a request to the Commission for the necessary action by way of-
(a) . public auction to the highest bidder at prevailing market value subject to and not less than the reserved price;
(b) . application confined to a targeted group of persons or groups in order to ameliorate their disadvantaged position;
(c) . public notice of tenders as it may prescribe;
(d) . public drawing of lots as may be prescribed;
(e) . public request for proposals as may be prescribed; or
(f) ... public exchanges of equal value as may be prescribed.
(2) The Commission shall ensure that any public land that has been identified for allocation does not fall within any of the following categories—
(a) public land that is subject to erosion, floods, earth slips or water logging;
(b) public land that falls within forest and wild life reserves, mangroves, and wetlands or fall within the buffer zones of such reserves or within environmentally sensitive areas;
(c) public land that is along watersheds, river and stream catchments, public water reservoirs, lakes, beaches, fish landing areas riparian and the territorial sea as may be prescribed;
(d) public land that has been reserved for security, education, research and other strategic public uses as may be prescribed; and
(e) natural, cultural, and historical features of exceptional national value falling within public lands;
(f) reserved land; or
(g)any other land categorized as such, by the Commission, by an order published in the Gazette.

Held:
  1. The term locus standi meant a right to appear in court and conversely to say that a person had no locus standi meant that he had no right to appear or be heard in such proceedings. The lack of the requisite capacity to bring a suit went to the root of the case, and without locus standi, the suit could not stand. The law on locus standi in constitutional petitions was envisaged under articles 22 and 258 of the Constitution of Kenya, 2010 (Constitution).
  2. The petition was premised upon articles 22 and 258 of the Constitution which granted every person the right to institute court proceedings claiming that a fundamental freedom in the Bill of Rights had been denied, violated or threatened. Whereas not expressly stated, the issue at hand was within the ambit of public interest. The petitioner had the requisite locus standi to move the court in the manner that it had done.
  3. Conservatory orders bore a more decided public-law connotation: for those were orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, were not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case; or high probability of success in the applicant’s case for orders of stay.
  4. In determining whether or not to grant conservatory orders, the court was alive to the fact that it had to be careful not to make a final determination of the issues in contention. It was not enough to merely establish a prima facie case and show that it was potentially arguable. Potential arguability was not enough to justify a conservatory order but rather there had to be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis.
  5. Kenyatta University was a public body and or a State organ and owned the suit property. Under article 62 (1)(b) of the Constitution, any land that was lawfully held, used or occupied by any State organ, except where it occupied such land as lessee under a private lease, was public land. Section 12 of the Land Act provided the mechanism under which public land could be allocated.
  6. The mandate of the NLC to administer land on behalf of the National and County Governments was provided for in the Constitution. That mandate was very deliberate and specific. The suit property fell within the category of land held, used or occupied by Kenyatta University, which was a national State organ. The reading of article 62(2) and (3) of the Constitution showed that the Constitution expressly barred the NLC, the County or National Governments from dealing with land held, used or occupied by a State organ in any manner, including allocation of such land .
  7. Land held, used or occupied by a national State organ was the only category of public land, pursuant to article 62(2) and (3) of the Constitution, that neither vested in the two levels of Government nor administered by the NLC on behalf of the two levels of Government. If the Constitution did not vest land held, used or occupied by a State organ in the National or County Governments, and excluded the NLC from administering it, the NLC could not allocate such land on behalf of the National or County Governments pursuant to the provision of section 12 of the Land Act. Section 12 was applicable in respect to all other categories of public land defined under article 62(1) except land held, used or occupied by a State organ, in which category the suit property fell.
  8. The exclusion of the National Government, the County Government and the NLC from dealing with land held, used or occupied by a national State organ by the Constitution was not accidental. It was a deliberate constitutional imperative to enable State organs to deal with such land pursuant to the laws governing them, and to avoid the past incidences where the Executive would deal with land reserved for State organs in any manner it deemed fit.
  9. The provisions of section 12 and 14 of the Land Act which provided the manner in which the NLC allocated public land, upon being moved by the National or County Governments, was inapplicable in the instant suit.
  10. In view of the provisions of articles 62(2)(b) and 62(3) of the Constitution, the letters of July 4, 2022 and July 7, 2022 authored by the 1st respondent, and any purported Cabinet resolution, were inconsequential, other than being a request to the 2nd respondent (University Council), just like any request that could be made by a Kenyan, for setting aside the University’s land for public purpose and or for the benefit of the University.
  11. From section 48 of the Universities Act, the manner in which a public university dealt with its land was determined by the university itself, subject to any endowment, bequest or donation. Section 60 of the Universities Act provided for the functions of the university council to include managing, supervising and administering the assets of the university in such a manner as best promoted the purpose for which the university was established.
  12. The law establishing Kenyatta University allowed the University, through its Council, to dispose of its immovable property, including land. While doing so, the Council had to comply with section 17 (8) of the Charter of Kenyatta University. The Council of Kenyatta University was supposed to administer the assets of the University, including disposing its land, in the interest of the University and the public at large, and in accordance with the procedures laid down by the Government.
  13. Where the landless occupied public land and established homes thereon, they acquired not title to the land, but a protectable right to housing over the same. The right to housing over public land crystallized by virtue of a long period of occupation by people who had established homes and raised families on the land. That right derived from the principle of equitable access to land under article 60(1)(a) of the Constitution.
  14. According to the Supreme Court in the Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), every individual as part of the collectivity of the Kenyan nation had an interest, however indescribable, however unrecognizable, or however transient, in public land. According to the Supreme Court, the landless people occupying public land should be allocated such land, or be compensated if any eviction was to occur. The residents of Kamae informal settlement, who, as admitted by Kenyatta University in Kenyatta University & 1699 others v Kimani Mbugua & 78 others [2021] eKLR and the NLC, had been in occupation of a portion of the suit property since 1984, had to be protected by the court.
  15. The evidence before the court showed that the University’s Council, vide its meeting of July 15, 2022 approved the re-planning of the suit property as suggested by the Cabinet for the allocation of a portion of the University land to KUTRRH, WHO, ACDC and the squatters. The Council did allocate the land in the manner suggested in the letter, and gave its reasons for doing so.
  16. The court was not shown any evidence by the petitioner, prima facie, that the University’s Council, which passed the resolution of July 15, 2022 to alienate a portion of the University land for public purpose was in the office illegally.
  17. Although the letter by the 1st interested party (who did not file an affidavit to support or oppose the application) showed that the Council rejected the alienation of the University land, that letter could not be equated to a resolution of the Council. The resolution, if it existed at all, should have been exhibited.
  18. The main lacuna in the instant application was that the same was filed on July 14, 2022, while the resolution of the Council was made on July 15, 2022. That being the case, the court expected the petitioner to file a further affidavit to counter, if at all, the Council’s resolution of July 15, 2022. That was not done despite the court having given the petitioner leave to do so when the matter came up for inter partes hearing on July 27, 2022.
  19. From the minutes of the University’s Council dated July 15, 2022, the Council, prima facie, justified the allocation of a portion of the University’s land, to wit, 30 acres to the WHO; 10 acres to the ACDC; 180 acres to KUTRRH and 190 acres to facilitate the resolution of Kamae Settlement Scheme impasse. The petitioner had not established a prima facie case with chances success.
Application dismissed with no order as to costs.


Kenya Law
Case Updates Issue 006/22-23
Case Summaries

JURISDICTION

The Political Parties Disputes Tribunal (Tribunal) had the jurisdiction to determine any dispute which arose out of party nominations.

Gachenge & 4 others v United Democratic Alliance & 2 others (Constitutional Petition E163 of 2022) [2022] KEHC 9911 (KLR) (Constitutional and Human Rights) (9 May 2022) (Ruling)
High Court at Nairobi
AC Mrima
Reported by John Ribia

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Summary Significance:   The court answered which parties could appear before the Political Parties Dispute Tribunal (the Tribunal). The court was faced with the argument that section 40 of the Political Parties Act limited the parties who could appear before it to political parties, party members and coalition of parties. Section 40(1)(fa) of the Political Parties Act was a general provision and was not limited to inter alia the parties and their members or between political parties.

Jurisdiction – jurisdiction of the Political Parties Disputes Tribunal (Tribunal) – jurisdiction of the Political Parties Disputes Tribunal vis-à-vis the jurisdiction of the High Court- whether the Political Parties Disputes Tribunal (Tribunal) had the jurisdiction to determine any dispute which arose out of party nominations - whether the High Court had the jurisdiction to entertain disputes arising out of party nominations – Constitution of Kenya, article 82(1) and 88; Political Parties Act, No. 11 of 2011 sections  39 and 40;  Elections Act, No. 24 of 2011, section 74;  Independent Electoral and Boundaries Commission Act, No. 9 of 2011,  section 4.
Statutes – interpretation of statutes – interpretation of sections 40(1)(fa)and 40(2)of the Political Parties Act, Act, No. 11 of 2011 - whether section 40(1)(fa) of the Political Parties Act, that provided that the Tribunal would determine appeals from decisions of the PPDT’s registrar and disputes arising out of party nominations, applied to all disputes arising out of party nominations - whether section 40(2) of the Political Parties Act, that made it a condition precedent that the internal dispute mechanism of a political party had to first be invoked, applied to disputes arising out of party nominations by parties who were not members of the political party whose party nominations were challenged.
Jurisdiction – doctrine of exhaustion of remedies – scope – exceptions - what was the scope of the doctrine of exhaustion of remedies as applied by Kenyan courts - what were the exceptions of the doctrine of exhaustion of remedies.

Brief facts:
The petitioner contested the manner in which the 1st respondent’s party nominations were conducted. The respondents contended that the High Court did not have the jurisdiction to deal with the instant matter as the petitioner had not utilised all available options under the law to resolve the dispute.  They contended that the right forums to resolve the disputes were the Independent Electoral and Boundaries Commission (the Commission) and the Political Parties Disputes Tribunal (the Tribunal). 
In reply, the petitioner declined the proposition that the High Court lacked jurisdiction. The petitioner contended that section 40 of the Political Parties Act listed the parties who would appear before the Tribunal. That the parties were limited to political parties, party members and coalition of parties. It was argued that since the petitioners were not members of the 1st respondent, they lacked locus standi to appear before the Tribunal. It was also argued that the dispute involved violation of the law and the constitutionality of respondents’ actions and was not strictly on nominations.

Issue:

  1. What was the scope of the doctrine of exhaustion of remedies as applied by Kenyan courts?
    1. What were the exceptions of the doctrine of exhaustion of remedies?
  2. Whether the Political Parties Disputes Tribunal (Tribunal) had the jurisdiction to determine any dispute which arose out of party nominations.
  3. Whether the High Court had the jurisdiction to entertain disputes arising out of party nominations.
  4. Whether section 40(1)(fa) of the Political Parties Act, that provided that the Tribunal would determine appeals from decisions of the PPDT’s registrar and disputes arising out of party nominations, applied to all disputes arising out of party nominations.
  5. Whether section 40(2) of the Political Parties Act, that made it a condition precedent that the internal dispute mechanism of a political party had to first be invoked, applied to disputes arising out of party nominations by parties who were not members of the political party whose party nominations were challenged. Read More..

Relevant Provisions of the Law
Constitution of Kenya, 2010, articles 82(1) and 88.
82.     Legislation on elections
(1)       Parliament shall enact legislation to provide for-

(a)      the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;
(b)      the nomination of candidates;
(c)       the continuous registration of citizens as voters;
(d)      the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and
(e)       the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.

88.     Independent Electoral and Boundaries Commission
 (1)      There is established the Independent Electoral and Boundaries Commission.
(2)       A person is not eligible for appointment as a member of the Commission if the person--

(a)      has, at any time within the preceding five years, held office, or stood for election as--
(i)        a member of Parliament or of a county assembly; or
(ii)       a member of the governing body of a political party; or
(b)      holds any State Office.

(3)       A member of the Commission shall not hold another public office.
(4)       The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--

(a)      the continuous registration of citizens as voters;
(b)      the regular revision of the voters’ roll;
(c)       the delimitation of constituencies and wards;
(d)      the regulation of the process by which parties nominate candidates for elections;
(e)       the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
(f)        the registration of candidates for election;
(g)      voter education;
(h)       the facilitation of the observation, monitoring and evaluation of elections;
(i)        the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
(j)        the development of a code of conduct for candidates and parties contesting elections; and
(k)       the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.

(5)       The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.

Elections Act, Act no 24 of 2011, section 74.
74.     Settlement of certain disputes:
(1)       Pursuant to Article 88 (4) (e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.
(2)       An electoral dispute under subsection (1) shall be determined within ten days of the lodging of the dispute with the Commission.
(3)       Notwithstanding subsection (2), where a dispute under subsection (1) relates to a prospective nomination or election, the dispute shall be determined before the date of the nomination or election, whichever is applicable.

Political Parties Act, No. 11 of 2011, section 40.
40.     Jurisdiction of Tribunal
The jurisdiction of the Tribunal is provided as follows: -
(1)       The Tribunal shall determine-

(a)      disputes between the members of a political party;
(b)      disputes between a member of a political party and the political party;
(c)       disputes between political parties;
(d)      disputes between an independent candidate and a political party;
(e)       disputes between coalition partners;
(f)        appeals from decisions of the Registrar under this Act; and
(fa)     disputes arising out of party nominations.

(2)       Notwithstanding subsection (1), the Tribunal shall not hear or determine a dispute under paragraphs (a), (b), (c), (e) or (fa) unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.
(3)       A coalition agreement shall provide for internal dispute resolution mechanisms.

 

Held:

  1. Jurisdiction was everything, jurisdiction gave a court or a tribunal the power, authority and legitimacy to entertain a matter before it. A decision made by a court of law without proper jurisdiction amounted to a nullity ab initio, and such a decision was amenable to setting aside ex debito justitiae.
  2. The doctrine of exhaustion in Kenya traced its origin from article 159(2)(c) of the Constitution which recognized, entrenched and promoted the use of alternative mechanisms of dispute resolution such as resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms.
  3. The question of exhaustion of administrative remedies arose when a litigant, aggrieved by an agency's action, sought redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine served the purpose of ensuring that there was a postponement of judicial consideration of matters to ensure that a party was diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
  4. There were exceptions to the doctrine of exhaustion. The exceptions could be laid out in two principles:
    1. The High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It was also essential for the court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it was suitable to determine the issues raised.
    2. The jurisdiction of the courts to consider valid grievances from parties who lacked adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which was proportionate to the interests the party wished to advance in a suit must not be ousted. Statutory provisions ousting court’s jurisdiction had to be construed restrictively.
  5. The petitioners sought to enforce fundamental rights and freedoms and it was demonstrated that the claimed constitutional violations were not merely framed in Bill of Rights language as a pretext to gain entry to the court. It was not barred by the doctrine of exhaustion. That was especially so because the enforcement of fundamental rights or freedoms was a question which could only be determined by the High Court.
  6. The facts raised in the instant petition related to the manner in which the 1st respondent conducted its party primaries and no more. The constitutional violations alleged arose from the impugned nominations. The petitioners’ argument that the petition raised more issues than those that emanated from the party primaries did not have any basis in the pleadings and was rejected.
  7. The Constitution and the law primarily created two avenues for settlement of pre-election disputes since any dispute arising out of the declaration of the results of an election was a preserve of the courts. The two avenues were the Commission under articles 82 and 88 of the Constitution, section 74 of the Elections Act and section 4 of the IEBC Act and the Tribunal under sections 39 and 40 of the Political Parties Act. The functions of the Commission and the Tribunal were well demarcated. The jurisdiction of the Tribunal in section 40 of the Political Parties Act was expanded by the introduction of Sub-section 1(fa) to include disputes arising out of party nominations.
  8. The Political Parties (Amendment) Act had also expanded the mandate of the Registrar of Political Parties through the introduction of Section 34(fd) of the Political Parties Act to include regulation of political party nominations in accordance with the Act.
  9. Section 40(1)(fa) of the Political Parties Act was to expand the jurisdiction of the Tribunal. Whereas the Tribunal initially had jurisdiction over disputes between the members of a political party, disputes between a member of a political party and the political party, disputes between political parties, disputes between an independent candidate and a political party, disputes between coalition partners and appeals from decisions of the Registrar, Parliament, through the amendment expressly allocated the mandate of resolving all disputes arising out of party nominations to the Tribunal. Unlike before the introduction of section 40(1) (fa) of the Political Parties Act where the jurisdiction of the Tribunal was limited to inter alia the parties and their members or between political parties, the amendment widened the access to the Tribunal. Any dispute which arose out of party nominations was a preserve of the Tribunal.
  10. Section 40(1) (fa) of the Political Parties Act was a general provision and was not limited to inter alia the parties and their members or between political parties.
  11. Until and unless the petitioners were able to demonstrate that any of the exceptions to the doctrine of exhaustion was applicable in the instant matter, the doctrine became a complete bar to the jurisdiction of the instant court.
  12. There were principally two exceptions to the doctrine of exhaustion. The first exception was when the alternative forum would not serve the values enshrined in the Constitution or law including the suitability of the appeal mechanism available in the context of the particular case. The second exception was when the forum did not accord the parties adequate audience or the forum lacks the quality of audience which was proportionate to the interests the party wished to advance in a suit.
  13. On the first exception, the Tribunal was a creation of the Constitution and the law. Its first call was to respect, uphold and defend the Constitution. In discharging its duties, the Tribunal was to apply and be guided by the Constitution including the national values and principles of governance in article 10. Putting it more succinctly, the Tribunal had the jurisdiction to determine whether the Constitution and the law were violated during the party nominations.
  14. Any party dissatisfied by the decision of the Tribunal may appeal to the High Court. The High Court accorded a forum where the applicability of the Constitution and the law could be interrogated further. There had been no evidence to demonstrate that the values enshrined in the Constitution or law would not be upheld before the Tribunal in the unique circumstances of the instant case.
  15. The second exception was on the adequacy of the forum to adjudicate on the dispute. Section 40(2) of the Political Parties Act made it a condition precedent that the internal dispute mechanism of a political party had to first be invoked. Section 40(2) was carefully drafted to avoid disputes between an independent candidate and a political party and to avoid appeals from decisions of the Registrar. The intention of Parliament was to restrict the application of section 40(2) to the parties tied to a political party.
  16. Whereas almost all disputes arising out of party nominations were premised on political parties, there were some isolated cases where other persons other than the members of a party may, for whatever reason, challenge party nominations. In order to take care of such instances, section 40 of the Political Parties Act ought to be amended to accord to such circumstances. With a view to align section 40 of the Political Parties Act with the constitutional imperatives on exercise of constitutional restraint and the need to enhance the applicability of alternative dispute resolutions mechanisms, and in keeping in line with section 7 of the Sixth Schedule to the Constitution, section 40(2) of the Political Parties Act could not apply to disputes arising out of party nominations by parties who were not members of the political party whose party nominations were challenged. The intention of Parliament that all disputes arising out of party nominations be dealt with by the Tribunal stood realized.
  17. There was no evidence that the petitioners invoked the jurisdiction of the Tribunal over the dispute in vain. The petitioners out rightly decided to rush to Court in total disregard to section 40(1) (fa) of the Political Parties Act. The petitioners failed to demonstrate the applicability of the second exception in the matter. The exception did not apply to the instant matter.

Petition dismissed.
Orders.

  1. The instant court lacked jurisdiction to deal with the dispute in the instant matter on account of the doctrine of exhaustion.
  2. The petition and the notice of motion dated April 19, 2022 were struck out.
  3. The petitioners were to bear the costs of the Petition.
  4. The court file was marked as closed
CONSTITUTIONAL LAW

There is an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals can be brought to the Independent Electoral and Boundaries Commission

Republic v Independent Electoral and Boundaries Commission & 4 others; Mongare (Exparte) (Judicial Review Application E004 of 2022) [2022] KEHC 9818 (KLR) (18 July 2022) (Judgment)
High Court at Nyamira
FA Ochieng, J
Reported by Kakai Toili

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Summary Significance: The applicant filed the instant application challenging the nomination of the 3rd respondent to vie for a member of county assembly position on the ground that the 3rd respondent had not resigned from the National Police Service within the required 6 months prior to the elections. The court pointed out that the constitutional mandate of the Independent Electoral and Boundaries Commission (IEBC) did not include the process of authenticating certificates or other documents presented by persons seeking to be registered as candidates in an election. The court also stated that there was an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals, if any, could be brought to the IEBC.

Constitutional Law - constitutional commissions - Independent Electoral and Boundaries Commission (IEBC) - mandate of the IEBC - whether it was the mandate of the IEBC to authenticate certificates or other documents presented by persons seeking to be registered as candidates in an election - whether where there was evidence that proved an aspirant was not eligible to be registered as a candidate, that aspirant could be allowed to vie simply because the evidence had not been available earlier.

Brief facts:
The 3rd respondent was an employee of the National Police Service prior to deciding to run for political office. The applicant contended that the applicant was in breach of section 43(5) of the Elections Act which provided that a public officer who had intentions to contest an election was obliged to resign at least 6 months before seeking elective office as he did not resign 6 months ahead of the elections scheduled for August 9, 2022.
The 3rd respondent claimed that the application was res judicata, as the issues it raised had been raised earlier in the appeal Shukin Oonge Mongare v Eric Omanwa Basweti & 3 Others Hcc No. EPA 004 of 2022. The 3rd respondent further contended that the applicant had used the wrong procedure when he moved the court by way of judicial review instead of an appeal.
The applicant sought among others; an order of certiorari to quash the decision of the 1st respondent (IEBC) neglecting/refusing to hear and determine the complaints by the applicant against the 3rd respondent’s nomination to contest for the election of Member of County Assembly for Bomwagamo Ward in North Mugirango Constituency within Nyamira County contained in the letter to the chairperson of the IEBC dated July 02, 2022; and the complaint dated July 01, 2022. The applicant also sought an order of mandamus to compel the IEBC to hear and determine the applicant’s complaints against the 3rd respondent’s nomination.

Issues:

  1. Whether it was the mandate of the Independent Electoral and Boundaries Commission to authenticate certificates or other documents presented by persons seeking to be registered as candidates in an election.
  2. Whether where there was evidence that proved an aspirant was not eligible to be registered as a candidate, that aspirant could be allowed to vie simply because the evidence had not been available earlier. Read More...

Held :

  1. The court in Shukin Oonge Mongare v Eric Omanwa Basweti & 3 Others did not render a substantive decision on the issues which had been placed before it. Accordingly, the issue concerning the date when the 3rd respondent resigned from public service, had not been determined by any court of competent jurisdiction. After the court held that it lacked jurisdiction to handle the appeal; and when it had intimated that such matters could only be entertained if brought through judicial review, it would be a mockery to slam the door in the face of the ex parte applicant when he had done as was advised.
  2. The IEBC did not have the letters dated June 23, 2022 and June 29, 2022, at the time when it made the decision to register the 3rd respondent as a candidate. Therefore, at that time, the IEBC could not be said to have erred when it registered the 3rd respondent.
  3. The constitutional mandate of the IEBC did not include the process of authenticating certificates or other documents presented by persons seeking to be registered as candidates in an election. It would be a logistical nightmare to require the IEBC to conduct forensic examination of the documents presented by aspirants. However, the applicant had filed a new complaint, which was backed by new evidence. The IEBC could not refuse to give a hearing to the applicant. In arriving at that decision, the court was not sitting in an appellate capacity.
  4. There was no substantive decision by the IEBC, on the complaint dated July 1, 2022. It was the mandate of the IEBC to hear and determine pre-election disputes. It could not therefore refuse to undertake its statutory obligation. Insofar as the IEBC declined to give a hearing to the ex parte applicant, it abdicated its responsibility. The date for the elections was just around the corner. However, the matter at hand would not require a lengthy hearing. The IEBC should be able to hear the complaint, and make a determination within hours, at most.
  5. There was an urgent need to formulate appropriate legislation that should specify the cut-off date by which complaints and appeals, if any, could be brought. In the current cycle of elections, numerous appeals were being filed even though there was less than 30 days to the date of elections. When the IEBC was expected to make proper arrangements for the elections, it should have sufficient time and opportunity to finalize preparations.
  6. One of the key issues that needed clarity and certainty was the identity of the candidates. When disputes continued to linger as to whether or not an aspirant should or should not be a candidate, the IEBC could not cause ballot papers to be printed. The delay could jeopardize the elections. On the other hand, there was a need to accord a fair hearing to persons who had complaints.
  7. All stakeholders needed to take stock, after the 2022 general elections, to discuss and formulate rules or regulations, or even statutory amendments that would strike an appropriate balance between the need to grant hearings and the need to bring to an end any cases, early enough, so that the IEBC could have sufficient time to make proper preparations for the elections.
  8. If a person was able to provide evidence that proved that an aspirant was not eligible to be registered as a candidate, the IEBC or Kenyans would not allow that aspirant to vie simply because the evidence had not been available earlier .

Application allowed with each party to bear its own costs.
Orders:

  • An order of mandamus directed at the 1st respondent was issued directing it to hear and determine the ex parte applicant’s complaint dated July 1, 2022.
JURISDICTION

High Court’s jurisdiction in pre-election disputes is only triggered once the Independent Electoral and Boundaries Commission has made a decision on the dispute

Kithinji v Ntuchiu & 5 others; Controller of Budget (Interested Party) (Petition E007 of 2022) [2022] KEHC 9933 (KLR) (7 July 2022) (Judgment)
High Court at Meru
TW Cherere, J
Reported by Kakai Toili

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Summary Significance: The petition revolved around the nomination of 1st respondent, who was the Deputy Governor and the County Executive Committee Member for Finance in Meru County, to contest as Deputy Governor for Meru County in the general elections while still serving as a county executive committee member. The court held among others that its jurisdiction was only triggered once the Independent Electoral and Boundaries Commission made a decision on the issue.

Jurisdiction - jurisdiction of the High Court - jurisdiction over pre-election disputes before the Independent Electoral and Boundaries Commission (IEBC) - whether the High Court had jurisdiction over pre-election disputes before the IEBC had made a decision on the dispute.
Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - right to access information - whether a county governor had the obligation to provide information where the information was sought through a letter addressed to the county secretary - Access to Information Act, 2016, section 7.

Brief facts
The petitioner claimed that he got information that the 1st respondent had not resigned as County Executive Committee Member for Finance of the County Government of Meru and that he was seeking re-election as Deputy Governor for Meru County in the general elections of August 9, 2022. The petitioner claimed that his advocate on April 24, 2022 wrote a letter to the 6th respondent, the Independent Electoral and Boundaries Commission (IEBC) seeking information why the 1st respondent was discharging his duties as a county executive committee member but got no response.
According to the petitioner, his advocate on June 6, 2022 wrote a letter to the 3rd respondent, the County Returning Officer Meru County, seeking information concerning the self-declaration form tendered by the 1st respondent which formed the basis for his clearance to contest but got no response. The petitioner sought among others; a declaration that the denial by the 2nd and 6th respondents to provide him with the information as sought was a violation of his right to access information; and a declaration that the 1st respondent was not qualified to vie for the seat of Deputy Governor, Meru County in the general elections.
The 1st and 2nd respondents opposed the petition and argued that the court had no jurisdiction to determine pre-election disputes and complaints and to do so would amount to usurping the alternative dispute jurisdiction of IEBC.

Issues:

  1. Whether the High Court had jurisdiction over pre-election disputes before the Independent Electoral and Boundaries Commission had made a decision on the dispute.
  2. Whether a county governor had the obligation to provide information where the information was sought through a letter addressed to the county secretary. Read More...

Relevant provisions of the law
Access to Information Act, 2016

Section 7 - Designation of information access officer
(1) A chief executive officer of a public entity shall be an information access officer for purposes of this Act.
(2) A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

Held :

  1. The jurisdiction of the High Court under article 165(3) of the Constitution to adjudicate on matters of and concerning the Constitution was wide. The High Court had the exclusive mandate to determine issues relating to the Elections Act. When interpreting provisions of the statutes, the court should endeavour to give a purposive approach to legislative interpretation. The court had jurisdiction to determine questions regarding interpretation of the Constitution.
  2. Pre-election disputes were a reserve of the IEBC or the court acting in judicial review or exercising its supervisory jurisdiction. Pre-election disputes such as the instant one that related to suitability and eligibility for nomination of candidates, had to be resolved by the IEBC in the first instance. The High Court’s jurisdiction was only triggered once the IEBC made a decision on the issue.
  3. No complaint concerning the 1st respondent’s suitability for nomination as deputy governor had been filed with IEBC. The issue concerning the suitability of nomination of the 1st respondent and whether the 1st respondent was required to resign by February 9, 2022 was brought to the court prematurely.
  4. Section 7 of the Access to Information Act, 2016 provided for the designation of information officers. The letter annexed by the petitioner dated April 12, 2022 seeking information concerning the 1st respondent’s resignation was addressed to the County Secretary Meru County. There was no evidence that the letter was served on the County Secretary. On its face, the letter revealed that it was served on a lady described as secretary to the Governor. Even assuming that the letter was indeed delivered to the 2nd respondent, which was denied, the 2nd respondent had no obligation to provide the information sought for the reason that no request was made to him.
  5. The petitioner’s advocate’s letter dated June 6, 2022 revealed on its face, that it was addressed to the 3rd respondent but was served on the firm of Kennedy Nyagaka Nyamokeri Advocates. There was no evidence that the letter was served on the 6th respondent’s chief executive officer and even if for arguments sake the letter was brought to the attention of the 3rd and 6th respondents, the letter did not warrant any response for the reason that it violated section 7 of the Access to Information Act, 2016.

Petition dismissed; preliminary objection upheld; costs to be borne by the petitioner.