Case ID:105437

Okiya Omtatah Okoiti v Independent Electoral & Boundaries Commission & 6 others [2017] eKLR

Case Metadata

Case Number:

Petition 504 of 2017

Parties:

Okiya Omtatah Okoiti v Independent Electoral & Boundaries Commission, Chairperson, Independent Electoral & Boundaries Commission, Attorney General, Uhuru Muigai Kenyatta, Ekuru Aukot, Jubilee Party & Orange Democratic Movement

Date Delivered:

24 Oct 2017

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

John Muting'a Mativo

Citation:

Okiya Omtatah Okoiti v Independent Electoral & Boundaries Commission & 6 others [2017] eKLR

Court Division:

Constitutional and Human Rights

County:

Nairobi

Case Summary:

The Supreme Court has jurisdiction over a matter concerning the effect of the withdrawal of a presidential candidate from a presidential election.

Okiya Okoiti v Independent Electoral & Boundaries Commission & 6 others

Petition No 504 of 2017

High Court at Nairobi

Constitutional & Human Rights Division

J M Mativo, J

October 24, 2017

Reported by Beryl A Ikamari

Jurisdiction

-jurisdiction of the High Court-dispute relating to the conduct of a presidential election-dispute touching on the withdrawal of a candidate to a presidential election after the gazettement of candidates-whether the High Court would have jurisdiction over such a dispute-Constitution of Kenya 2010, articles 163(3), 163(7) & 165(5).

Jurisdiction

-jurisdiction of the Supreme Court-disputes relating to presidential elections-disputes relating to presidential elections but not falling within the express terms of article 140 of the Constitution-consideration of presidential elections as a process which would include events occurring outside the presidential election day- whether the Supreme Court had jurisdiction over a matter relating to the impact of the withdrawal of a presidential candidate after gazettement of candidates to a presidential election-Constitution of Kenya 2010, articles 140, 163(3), 163(7) & 165(5).

Civil Practice and Procedure-

justiciability-doctrine of ripeness-petition touching on events that were yet to occur but were anticipated-whether such matters were ready for litigation and could form the subject of a Court action.

Brief facts

Counsel for the 3

rd

Respondent made an application for the Court to certify the matter as one that raised substantial questions of law warranting the empanelling of a bench of an uneven number of judges, under article 165(4) of the Constitution, to hear and determine the matter. Counsel said that the petition raised issues that were of importance in the presidential elections scheduled for October 26, 2017.

The petition sought reliefs which included orders that the President ceased occupying office upon the nullification of his election by the Supreme Court on September 1, 2017 and an order compelling the President to vacate office by mid-night on November 1, 2017. The petition generally raised questions on the impact of the withdrawal of a presidential candidate from a presidential election after the gazettement of candidates.

During the hearing of the application, the Court raised the issue of jurisdiction. It was questioned whether the matter was within the jurisdiction of the High Court as it concerned issues related to a presidential election and its validity.

Issues

Whether the High Court had jurisdiction over an issue concerning the withdrawal of a presidential candidate from a presidential election after gazettement of candidates.

Whether issues in a petition, which touched on events that were yet to occur, were not ripe and could therefore not be the subject of litigation.

Whether the Supreme Court had jurisdiction over disputes, relating to presidential elections, which were not expressly mentioned in article 140 of the Constitution.

Held

Article 163 (3) of the Constitution provided for the jurisdiction of the Supreme Court. The Supreme Court had original jurisdiction over disputes relating to elections to the office of the President under article 140 of the Constitution.

Under article 165(5) of the Constitution, the High Court would not have jurisdiction over matters which were within the exclusive jurisdiction of the Supreme Court or within the jurisdiction of the Courts established in article 162(2) of the Constitution.

Article 163(7) of the Constitution provided that all Courts, except the Supreme Court, were bound by the decisions of the Supreme Court. It was therefore necessary to assess whether the Supreme Court had already pronounced itself on the issues raised in the petition.

The issue disclosed in the petition was the question on what would happen after a presidential candidate withdrew from an election after the gazettement of candidates. Specifically, it was on the impact of the withdrawal of Hon. Raila Amolo Odinga and his running mate from the presidential election scheduled for October 26, 2017. The fundamental question that arose was on whether or not the issues raised had a bearing on presidential elections and whether they ought to be determined by the High Court or by the Supreme Court.

The Supreme Court of Kenya in Advisory Opinion number 2 of 2012 addressed the issue whether the entire question concerning presidential elections was within the Supreme Court's jurisdiction or whether the Supreme Court's power was limited by the express language of article 140 of the Constitution. The Supreme Court said that there were potential disputes related to presidential elections other than those expressly mentioned in article 140 of the Constitution. It said that a presidential election was not a single event but a process set in a plurality of stages. The Supreme Court opined that beyond the events arising from the day of presidential elections, there could be a contested question, within the terms of electoral laws or concerning political parties, which would still have a clear bearing on the conduct of the presidential election.

The issues raised in the petition had a bearing on the presidential elections of October 26, 2017 and were within the opinion rendered by the Supreme Court. Whereas article 138(8) of the Constitution, addressed the question on what would happen in the event of death of a candidate or where no candidate was nominated, the question on the withdrawal of a candidate after nominations and or gazettement had not been addressed in the Constitution.

As correctly pointed out by the Supreme Court, a presidential election was a process. Where a candidate withdrew from that process that withdrawal was an issue with a bearing on that process and the dispute was within the jurisdiction of the Supreme Court.

Given that the petition also touched on events which had not taken place, it raised questions relating to the fundamental doctrine of ripeness. The issues raised in the petition, apart from the issue touching on the withdrawal of a candidate to a presidential election, were not ripe for determination.

Petition dismissed.

Case Outcome:

Petition dismissed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 504 OF 2017

In the matter of: The Constitution of Kenya 2010

IN THE MATTER OF: The Election of the President of the Republic of Kenya after

failed repeat Presidential Elections slated for 26 October 2017

IN THE MATTER OF: The Laws applicable to the Presidential Re-run

IN THE MATTER OF: The formation of the Supreme caretaker Government to hold

the Country together and midwife electoral reforms 2017

IN THE MATTER OF: The Contempt of the Supreme Court Orders by the

Independent Electoral & Boundaries Commission

IN THE MATTER OF: The purported revival of the repeat presidential elections slated for 26

October 2017 which were effectively and irreversibly cancelled by the

operation of the law following the withdrawal of the NASA candidates

and the alleged desperate retrospective application of the High Court

decision in Dr. Ekuru Aukot vs Independent Electoral & Boundaries

Commission & 3 Others, Nairobi High Court Petition No. 471 of 2017

BETWEEN

Okiya Omtatah Okoiti.............................................................................................Petitioner

versus

Independent Electoral & Boundaries Commission......................................1

st

Respondent

The Chairperson, Independent Electoral & Boundaries Commission ......2

nd

Respondent

The Hon. Attorney General............................................................................3

rd

Respondent

H.E. Uhuru Muigai Kenyatta..........................................................................4

th

Respondent

And

Dr. Ekuru Aukot........................................................................................1

st

Interested Party

Jubilee Party.............................................................................................2

nd

Interested Party

Orange Democratic Movement................................................................3

th

Interested Party

RULING

1.

Mr. Mutinda

appearing for the Hon Attorney General (third Respondent) applied orally for this court to certify this case as raising substantial questions of law and refer the file to the honourable the chief justice under article

165 (4)

of the constitution to constitute a bench of uneven number of Judges of the High Court to hear and determine this case.

2. The application was supported by counsels for

Mr. Kilonzo

for the first Respondent, Mr.

Karori

and

Melly

for the second Respondent,

Mr. Ngatia, SC

for the fourth Respondent,

Mr. Mutuma

for the first Interested Party,

Mr. Kirangu

for the second Interested Party,

Mr. Onyango

for the third Interested Party while

Mr. Omtata

(the petitioner), and

Mr. Ochieng

for the forth Interested party opposed the application.

3.

Mr. Mutinda

argued that the petition raises substantial points of law in that the petition invites the court to determine issues of great public importance relating to the Presidential elections scheduled for 26

th

October 2017. He urged the court to examine the reliefs sought in the petition which include orders

inter alia

that the president ceased occupying office upon the nullification of his election by the Supreme Court on 1

st

September 2017 and an order compelling the president to vacate office by mid-night on 1

st

November 2017. Also prayed in the petition is an order compelling the IEBC to hold fresh elections within sixty days from 1

st

November 2017 only to mention but some.

4.

Mr Ngatia

Sc, in support of Mr. Mutinda's application, posed three questions which in his view raise substantial questions of law. These are:-

(i)

if the court were to grant an order for the Hon. The Chief Justice to midwife the electoral process, then, this will out rightly violate the doctrine of separation of powers;

(ii)

that the care taker government sought in the petition will be formed in a manner not contemplated under the law; and

(iii)

the question of what happens if a candidate withdraws from the race.

5. In the course of

Mr. Mutinda's

submissions, this court on its own motion raised the question of jurisdiction and invited the parties to address the subject. Jurisdiction is the very basis on which any Tribunal or court tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court;

afortiori

the Court

can suo motu

raise it.

6. It is desirable that Preliminary Objection be raised early on the issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even

viva voce

. It is always in the interest of justice to the raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.

[1]

7. The

locus classicus

decision in Kenya on jurisdiction is the celebrated case of

Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd

[2]

where the late

Justice Nyarangi

of the Court of Appeal held as follows:-

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

8.

John Beecroft

in a treatise headed

“Words and Phrases Legally Defined”

[3]

states the following about jurisdiction:-

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and maters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the fact exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

9. While raising the question of jurisdiction, I had in mind the provisions of Article

163 (3)

of the Constitution provides that:-

The Supreme Court shall have-

a.

exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article

140

; and

b.

subject to clause

(4)

and

(5),

appellate jurisdiction to hear to hear and determine appeals from-

i.

the Court of Appeal; and

ii.

any other court or tribunal as prescribed by national legislation.

10. Sub-article

(6)

provides that the Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.

11.

Article 165

establishes the High Court and vests in it vast powers

including the power to

‘determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened

’ and the jurisdiction

‘

to hear any question respecting the interpretation of the Constitution

.’

Article 23(1)

provides that:-

“The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.”

Article

165 (6)

provides that "The High Court

has supervisory jurisdiction over the subordinate courts and

over any person,

body or authority exercising a judicial or quasi-judicial function.

12.

The limitation of this courts vast powers conferred under article

165

is to be found in sub-article

(5)

which states in mandatory terms that the high court shall not have jurisdiction in respect of matters reserved for the exclusive jurisdiction of the Supreme Court under the constitution or falling within the jurisdiction of the courts established under article

162 (2).

13. Article

163 (7)

provides that all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. This leads to the question whether the Supreme Court has pronounced itself on the issues raised in this petition. This question warrants a close examination of the petition so as to appreciate the crux of the petitioners case.

14. At this juncture, I find it appropriate to comment on the function and purpose of good pleadings by recalling the words of an Australian Court

[4]

where Vickery J said this of the principles of good pleading:-

"In a mathematical proof, elegance is the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance is minimum motion with maximum effect. In filmmaking, elegance is a simple message with complex meaning. The most challenging games have the fewest rules, as do the most dynamic societies and organizations. An elegant solution is quite often a single tiny idea that changes everything.

… Elegance is the simplicity found on the far side of complexity.

While elegance in a pleading is not a precondition to its legitimacy, it is an aspiration which, if achieved, can only but advance the interests of justice.

A poorly drawn pleading, on the other hand, which does not tell a coherent story in a well ordered structure, will fail to achieve the central purpose of the exercise, namely communication of the essence of case which is sought to be advanced

.

….

Crafting a good pleading calls for precision in drafting, diligence in the identification of the material facts marshalled in support of each allegation, an understanding of the legal principles which are necessary to formulate complete causes of action and the judgment and courage to shed what is unnecessary.

Although a primary function of a pleading is to tell the defending party what claim it has to meet, an equally important function is to inform the court or tribunal of fact precisely what issues are before it for determination

.

[5]

(Emphasis supplied)

15. My analysis of the petition before me leads me to the irresistible conclusion that the crux of this petition is the question

"what happens after a presidential candidate withdraws from the race after the Gazettement of the candidates." Put differently, does the withdrawal of the Hon. Raila Amolo Odinga and his running mate from the presidential race render the presidential election scheduled for 26

th

October 2017 fatal?

16. Also, among the orders sought by the petitioner are

(a)

quashing the Gazette Notice No. 10152 dated 13

th

October 2017. The fundamental question that requires an answer is whether or not the foregoing issues have a bearing on the conduct of Presidential elections and if so, whether they are matters for determination by this court or the Supreme Court.

17. While raising the question of jurisdiction, I drew the parties attention to the Supreme Court of Kenya Advisory opinion number

2

of 2012 where the Supreme Court addressed the question whether the entire question concerning presidential elections belong to the Supreme Court's jurisdiction or whether its power is limited by the express language of Article

140

of the constitution. Addressing the said question the Supreme Court rendered itself as follows:-

Para 100

"It is clear to us, in unanimity, that there are potential disputes from Presidential elections

other than

those expressly mentioned in Article

140

of the constitution. A Presidential election, …, is not lodged in

a single event

; it is, in effect, a process set in a plurality of stages. … Therefore, outside the framework of the events of the day of presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties, Yet still, the dispute would still have clear bearing on the conduct of

the Presidential election.

Para 101

Does the entire question concerning Presidential elections belong to the Supreme Court's jurisdiction or is the Supreme Court's power limited by the express language of Article 140 of the Constitution". ..

On a literal construction, it may be stated that the foregoing reference to "

the elections

to office of President" suggests the draftspersons contemplated that

several

rounds of election may be involved, before the emergence of a duly elected President.

Para 104

It is our unanimous opinion that the validity of the Presidential election is not for determination only

after

the administrative pronouncement of the final result; at any stage in the critical steps of the electoral process, the Supreme Court should entertain a dispute as to validity"

18. The petitioner Mr. Omtatah argued that this court has jurisdiction under article

165.

He also relied on paragraph

100

of the Supreme Court Advisory Opinion cited above which reads:-

"This opinion, on the second question raised by the Attorney General, gives an indication of the course of practice, in the absence of any relevant constitutional change, or new legislation on the subject."

19. In Mr. Omtata's view, the relevant legislation is now in place in the form of legal notice no.7 of 2011, that is

The Supreme Court (Presidential Election Petition Rules), 2017

. In my humble view, these are Rules of procedure enacted to govern conduct of Presidential Petitions at the Supreme Court, hence, they cannot be said to be the legislation the Supreme Court referred to in paragraph

100

relied upon by Mr. Omtatah.

20.

Mr Ochieng

for the fourth Interested Party also submitted that this court has jurisdiction to entertain this matter by virtue of Article

165

of the constitution. He nevertheless admitted that some of the reliefs sought in the petition cannot be granted owing to the fact that they touch on future events which have not crystallized in causes of action.

21. The other issues raised in the petition which can safely be said to be within the jurisdiction of this court touch on events that have not taken place, and this raises a question of the fundamental doctrine or ripeness.

22. I have carefully studied the Supreme Court opinion referred to above, and I have no doubt that the core issues raised in this petition are matters that the Supreme Court carefully addressed in the said opinion. The Supreme Court opined

that there are potential disputes from Presidential elections

other than

those expressly mentioned in Article 140 of the constitution. A Presidential election, much like other elected-assembly elections, is not lodged in

a single event

; it is, in effect, a process set in a plurality of stages. … Therefore, outside the framework of the events of the day of presidential elections, there may well be a contested question falling within the terms of the statute of elections, or of political parties, Yet still, the dispute would still have clear bearing on the conduct of

the Presidential election.

23. The issues arising in this petition in my view have a bearing on the presidential elections scheduled for 26

th

October 2017 and fall within the opinion rendered by the Supreme Court. Whereas Article 138 (8) addresses the question of what would happen in the event of death of a candidate or where no candidate is nominated, the question of withdrawal of a candidate after nominations and or Gazettement has not been addressed in the constitution.

24. In my view, since the election is a process as correctly pointed out by the Supreme Court, where a candidate withdraws in the course of the process which is clearly an issue that has a bearing on the process, then it is my view that such a dispute falls within the jurisdiction of the Supreme Court.

25.

The Supreme Court also addressed the question "

Does the entire question concerning Presidential elections belong to the Supreme Court's jurisdiction or is the Supreme Court's power limited by the express language of Article 140 of the Constitution". .. On a literal construction, it may be stated that the foregoing reference to "

the elections

to office of President" suggests the draftspersons contemplated that

several

rounds of election may be involved, before the emergence of a duly elected President.

26.

On the face of the clear provisions of Article

163 (3), (7)

and the Supreme Advisory Opinion number

2

of 2012, and in particular the paragraphs reproduced above, I am constrained to find and hold that the substantial issues raised in this petition are outside the jurisdiction of this court.

27. The other issues raised in the petition which would have fallen within the jurisdiction of this court are not ripe for determination.

28. Accordingly, I am constrained as I hereby do, to dismiss this petition with no orders as to costs.

29. No orders as to costs

Orders accordingly.

Dated at Nairobi this

24

th

day of

October,

2017

John M. Mativo

Judge

[1]

Belgore J.S.C. See Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd, (1992) 5 NWLR (Pt. 244) 675 at 693

[2]

{1989} KLR 1

[3]

Volume 3:1-N, at Page 113

[4]

In SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd {2011} VSC 492 at [3]-[6]

[5]

See also Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77 [1-4]; Hoh v Frosthollow Pty Ltd and Ors [2014] VSC 77 at [13] – [20].