Case ID:201822

Takal v Adam & 3 others (Petition 12B of 2022) [2022] KEHC 12633 (KLR) (21 July 2022) (Judgment)

Case Metadata

Case Number:

Petition 12B of 2022

Parties:

Takal v Adam & 3 others

Date Delivered:

21 Jul 2022

Case Class:

Court:

High Court at Garissa

Case Action:

Judgment

Judge(s):

Abida Ali-Aroni

Citation:

Takal v Adam & 3 others (Petition 12B of 2022) [2022] KEHC 12633 (KLR) (21 July 2022) (Judgment)

Court Division:

Civil

County:

Garissa

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

Takal v Adam & 3 others (Petition 12B of 2022) [2022] KEHC 12633 (KLR) (21 July 2022) (Judgment)

Neutral citation:

[2022] KEHC 12633 (KLR)

Republic of Kenya

In the High Court at Garissa

Petition 12B of 2022

A Ali-Aroni, J

July 21, 2022

Between

Abdinoor Bashir Takal

Petitioner

and

Nathif Jama Adam

1

st

Respondent

Independent Electoral and Boundaries Commission

2

nd

Respondent

Commission for University Education

3

rd

Respondent

Returnig Officer, Garissa County

4

th

Respondent

Judgment

1.

The 4

th

Respondent, as an agent of the 2

nd

Respondent cleared the 1st Respondent, Nathif Adam Jama for nomination for the Garissa County Gubernatorial seat on the 4

th

of June 2022. This seem to have aggrieved the Applicant herein Abdinoor Bashir Takal who informed the court that he attempted to file a complaint against the said nomination with the 2

nd

Respondent on the 20

th

of June 2022 but was said to be time barred as he did not file his complaint in adherence to the timelines set by the 2

nd

Respondent.

2.

The Applicant described himself as a male adult of sound mind residing and working for gain in Garissa County. The 1

st

Respondent Nathif Adam Jama is described as a Governor nominee on an

ODM

ticket for the gubernatorial seat, Garissa County. The 2

nd

Respondent Independent Electoral & Boundaries Commission, is described as a body charged with the responsibility of conducting, supervising and carrying out elections or referenda under Article 88 of the

Constitution

, the 3

rd

Respondent is the Commission on University Education, established under the

University Act

, 2012, with the mandate of promoting the objectives of University Education.

3.

Aggrieved by the fact that his complaint was said to be out of time the Petitioner moved this court by way of a Constitutional Petition dated 23

rd

June 2022 pursuant to Articles 1, 2, 3, 10, 23, 24, 38, 48, 88, 159, 160, 165(3), 180, 193(3), 232, 258, 259 and 260 of the

Constitution

of Kenya.

4.

He cited contravention and/or breach of Articles 2,3,10(2); 35, Chapter Six and Articles 180 and 193(1) (B) of the

Constitution

. Equally he relied on the

Election Act

2011, Sections 22 as read with regulations 47 and Section 74 of the said

Act

. He further alleged contravention of

Leadership & Integrity Act

2012, the

Oaths and Statutory Declaration Act

,

Independent Electoral Commission Act

.

5.

It is the Petitioner’s case that there was and there are ongoing violations of the

Constitution

and he moved the Court pursuant to Article 165(3) and d(ii) as read with Article 23(1) of the

Constitution

.

6.

The main gist of the Applicant’s case is the qualification of the 1

st

Respondent for nomination based on the threshold provided for in Article 180 as read with Article 193(b) of the

Constitution

and Section 22 of the

Election Act

as read with regulation 47 of the

Elections (General) Regulations

2012. Secondly The Petitioner challenges the 1

st

Respondent’s candidacy based on Chapter Six of the

Constitution

as read with the

Leadership & Integrity Act

in reference to the 1

st

Respondent academic qualifications as presented to the 2

nd

Respondent for the current nomination visa vis the certificate of a Bachelor’s degree previously presented to the 2

nd

Respondent in a previous nomination.

7.

In the substantive Petition the Applicant urges that the aforesaid Constitutional violations are so gross as to warrant revocation of the nomination certificate issued and seeks for relief as follows;

a.

A declaration that the 1

st

Respondent does not possess valid academic qualifications to contest for the position of County Governor.

b.

A declaration that the 2

nd

and 4

th

Respondent violated Articles 88(4); 180 of the

Constitution

and Section 22 of the

Elections Act

by issuing a nomination certificate and clearance while the 1st Respondent did not meet the educational requirements.

c.

An order of certiorari to remove to the High Court and quash the decision of the 2

nd

and 4

th

Respondents that granted nomination certificate and clearance of the 1

st

Respondent to contest the Garissa County gubernatorial election.

d.

An order revoking the nomination of the 1

st

Respondent to contest for the Garissa County gubernatorial election.

e.

A conservatory order stopping the 2

nd

Respondent from forwarding the name of the Respondent for printing of the ballot papers for Garissa County gubernatorial election and/or presenting his names for election in the 9

th

August General Elections.

f.

A declaration that the 1

st

Respondent has violated Chapter Six on Leadership and Integrity to the following extent;

i.

That the 1

st

Respondent duly filled and presented to the IEBC for the purposes of nomination certified copies of invalid educational qualification certificates namely a foreign Master’s Degree Certificate from the University of Gloucestershire without proper authentication and recognition.

ii.

That the 1

st

Respondent obtained clearance to participate in the Gubernatorial Elections yet he neither holds the requisite academic qualifications (pursuant to Article 180 (2) as read with Article 193 (1) (b) of the

Constitution

and Section 22 of the

Elections Act

2011 & Regulation 47 of the

Elections (General) Regulations

2012) nor possess the requisite ethical and moral requirements (espoused in Chapter Six of the

Constitution

as read with Section 13 (1) (c ) & (g) and (2) of the

Leadership and Integrity Act

2012 and Regulation 46 of the

Elections (General) Regulations

2012) to vie for the position of the Governor.

iii.

The 1

st

Respondent noting that his Bachelor’s degree from University of Gloucestershire was challenged for among other reasons that he got it at the age of 15 years, he fraudulently changed the year of birth on his Identity Card by 10 years to show that he obtained his Bachelor’s degree at the age of 25 years and not 15 as it was before.

g.

An order compelling the 2

nd

Respondents to disclose information presented by the 1

st

respondent and which were used for clearance of the 1

st

Respondent and subsequent issuance of a nomination certificate.

h.

An order compelling the 3

rd

Respondent to disclose information relating to recognition of the 1

st

Respondent’s academic qualification in accordance with the standard guidelines.

i.

Any other order that this Honourable Court may deem fit and just to grant to ensure that the rule of law is upheld by the Respondents in exercise of its legislative function.

j.

The cost of this petition be borne by the Respondents.

8.

In support of the Petition he swore an affidavit dated 23

rd

June 2022, stating that he is aware that the 1

st

Respondent received the nomination papers from the 2

nd

Respondent on the 4

th

of June, 2022 which included a Master’s degree certificate in Islamic Banking, Finance & Management from University of Gloucestershire in line with Section 22 of the

Elections Act

, 2011 and Regulation 47 of

Regulations

2012 and based on the submitted documents the 1

st

Petitioner was cleared to vie for the seat of Governor Garissa County.

9.

That having knowledge that the 1

st

Petitioner did not meet the Educational threshold, the Petitioner on the 18

th

day of June 2022 went to file a complaint with the 2

nd

Respondent but was informed by officials of the 2

nd

Respondent that he was time barred. His Lawyer wrote a letter to the 1

st

Respondent’s chairman on the 20

th

of June 2022 seeking for hearing of the Complaint but to date no response has been received.

10.

Further he states that he is aware that the 3

rd

Respondent has laid a process where degrees, diplomas and certificates conferred by foreign universities and institution, are to be recognized and the degrees or qualifications are equated by the 3

rd

Respondent based on their standard and guidelines.

11.

The Petitioner states further that he is certain that the 3

rd

Respondent did not apply its standards and guidelines for institutional recognition as the 1

st

Respondent has no valid 1

st

degree since the Bachelor’s degree from the University of Karachi has been challenged. Further that the practice in Kenya is that before a Master’s degree is earned one must acquire a Bachelor’s degree.

12.

Further the Petitioner states that the 3

rd

Respondent did not properly verify and authenticate the academic qualifications of the Petitioner which he presented to the 4

th

Respondent for purposes of vying for a Gubernatorial Seat for the County of Garissa, leading to Petitioner writing to the 3

rd

Respondent, he is yet to receive a response.

13.

He deposed further that since the 1

st

Respondent exchanged his bachelor’s degree with an invalid Master’s degree which was not authenticated in a bid to secure clearance from the 1

st

Respondent, to vie for the gubernatorial elections for Garissa County he does not possess the requirements expect of a leader by Chapter Six of the

Constitution

as read with

Leadership & Integrity Act

.

14.

In his two Supplementary Affidavits dated 4

th

July, 2022 and 5

th

July, 2022 the Petitioner informed the court that he got information and evidence challenging the authenticity of the 1

st

Respondent’s academic qualification on the 15

th

of June, 2022.

15.

That he is aware that the educational certificates presented by the 1

st

Respondent to the 2

nd

Respondent in 2017 are different from those presented for purposes of the forthcoming elections. That in 2017 the Petitioner submitted a Bachelor’s degree in Commerce from the University of Karachi issued in 1984 and it is on the basis of the same that he was cleared. Further that the 3

rd

Respondent had not verified the degree then but issued a letter recognizing the same as a result questions arose on the same. Further the 1

st

Respondent’s identity card indicated his date of birth as 1

st

January 1969, which cast further doubts to the authenticity of the Karachi degree as it appeared that he had obtained the same at age 15.

16.

The Petitioner stated further that he is aware the 1

st

Respondent could not use the Bachelor’s due to the questions raised in 2017 and opted to supply a Master’s degree instead.

17.

He further posits that the fact that the 1

st

Respondent changes his degree certificate in a bid to get clearance from the 1

st

Respondent every election cycle this raises questions to his integrity and whether he possesses the requisite educational, moral and ethical requirements in line with Chapter Six and the

Leadership & Integrity Act

.

18.

The Respondents objected to the petition and filed their respective replying affidavits denying the allegations of the Petitioner.

19.

On the part of the 1

st

Respondent he filed a replying affidavit dated 4

th

July, 2022 and supplementary affidavit dated 14

th

July 2022.

20.

In the said affidavits the 1

st

Respondent took issue with the jurisdiction of the court, according to him the matters were hinged on a pre-election issue.

21.

Further he stated that the Petitioner raised several issues yet he did not back the same with evidence. The matters raised are speculative, full of conjecture and hearsay.

22.

Further he stated that his political party, the Orange Democratic Movement Party verified his Educational credentials before issuance of a nomination certificate in line with the nomination requirement. That he presented his papers for clearance to the 1

st

Respondent and was cleared on 4

th

of June 2022 by the 4

th

Respondent having met all the constitutional and statutory requirements.

23.

As relates to his academic papers he averred that

a.

On 13

th

November 2012, he graduated with a Master’s degree from the University of Gloucestershire and was awarded a Master’s degree

b.

On 3

rd

June 2022, the 3

rd

Respondent recognized the University and the Qualification awarded.

c.

That in 1993 he was elected an Associate of the Institute of Bankers Association after successfully completing the following exams with a pass grade;

1.

Law relating to banking services.

2.

Monitory & financial systems.

3.

Accountancy.

4.

Management & banking.

5.

Investments.

6.

Trade function – payment & Services

7.

Branch banking law & practice.

8.

Marketing.

24.

He contended further that the completion of associateship examination as set above is recognized professionally as equivalent of a university 1

st

degree and duly recognized as such and accepted by universities as a gateway to a master’s degree.

25.

Further he states that he is a qualified Kenyan Banker, writer and politician, he has previously served as a senior Vice President and Head of Sharjah Islamic Bank’s Investment & International Banking Division, acted as the Managing Director/Chief Executive of the First Community Bank and has co-authored the first book on Sukur and the Petitioner has created a false narrative that he does not have a degree in a bid to stop the 2

nd

Respondent for forwarding his name for purposes of printing the ballot papers.

26.

The 1

st

Respondent denies being in violation of Chapter Six of the

Constitution

or

Leadership & Integrity Act

and states that the Petition is based on blatant lies, it is malicious, unmerited with the sole purpose maligning his name and misleading the court.

27.

The 1

st

Petitioner avers further that he was born on the 5

th

of June 1959 and not 1

st

January 1969. That in 1978, he applied for a National Identity Card and which was issued with an erroneous date of birth. That the records at the Registrar of Persons indicate the correct date of birth.

28.

In April 2017, he applied for re-issuance of his Identity Card and accordingly was issued an Identity Card No. 00XXX59 a Serial No. 246XXXX60 issued on 12

th

September 2017 with correct details. Previously he had I/D No. 700XXX718 which had a typographical error. He is also holder of passport No. A23XXX72 which clearly gives his birth date and year.

29.

That he participated in the 2013 general elections, where he met all the required qualifications and was duly nominated and cleared for the gubernatorial elections and duly elected as the first governor of Garissa County.

30.

It is his position that the Applicant has failed to demonstrate any particular violation of his constitutional rights and has also failed to bring the case within the confines of Article 22 of the

Constitution

.

31.

The 2

nd

& 4

th

Respondents filed two affidavits, the first dated 4

th

July 2022 and the second 14

th

July 2022 both sworn by Chrispine Owiye the Director Legal and Public Affairs of the 2

nd

Respondent.

32.

In the first affidavit the said officer challenged the mandate of the court stating that the issue before the court is a pre-election dispute and governed by Article 88(4) (d) and (e) of the

Constitution

as read with Section 74(1) of the

Election Act

which give the mandate to resolve all pre-election disputes to the 2

nd

Respondent.

33.

That the 1

st

Respondent presented before the 4

th

Respondent all the requisite documents indicating that he had met all academic, moral and ethical requirements as set out in the

Constitution

and the

Elections Act

and fit to run for office contrary to the Petitioner’s allegations and the said academic papers had been authenticated by the 3

rd

Respondent.

34.

In the second affidavit it is deposed that for the year 2022, the 1

st

Respondent presented to the 4

th

Respondent a degree certificate from the University of Gloucestershire for Master of Arts in Banking, Finance and Management accompanied by a letter dated 3

rd

June 2022 written by the 3

rd

Respondent confirming recognition of the said university.

35.

He further explained unavailability of 2013 documents is due to storage challenges as they only store documents for one election cycle and cannot therefore supply documents for the 2013 elections.

36.

The 3

rd

Respondent only entered appearance and did not file any pleading in opposition.

37.

The matter was canvassed by way of submissions. Counsel for the Petitioner and 3

rd

Respondent submitted orally, the 1

st

, 2

nd

and 4

th

Respondents’ counsel filed written submissions and highlighted on the same. The court is highly indebted to counsel for the respectful parties for their quick action of filing their pleadings and submissions in record time. The Court on its part had to rise to the occasion albeit a couple of days late due to the demand of other judicial duties. The rush was necessitated by the tight timelines that are the haul mark of this time; election time.

Submissions

Petitioner’s Submissions

38.

Counsel for the Petitioner submitted that there is a distinction between recognition of an institution and accreditation of academic qualification.

39.

He submitted further that prayer (f) of the petition seeks for a declaration that the 1

st

Respondent has violated Chapter Six on Leadership & Integrity mainly Article 73 and 75. That Article 73 (2) (a) speaks to selection on the basis of personal integrity, competence, and suitability or election in free and fair elections. Article 73 2 (c) speaks to selfless service based on honesty. Article 73 (2) (d) speaks of accountability to the public.

That the above demonstrates that the 1

st

Respondent fails the test of integrity as he does not hold minimum requirements. The said should be read together with section 3(2) (c) of

Leadership and Integrity Act

.

40.

Further counsel contended that the 3

rd

Respondent only availed recognition of the university but has did not accredited the 1

st

Respondent’s degree.

41.

Further that was an issue in 2017 in relation to the age of the 1

st

Respondent when he attained the bachelor’s degree from the University of Karachi as it appeared he qualified at age 15.

42.

Though the 1

st

Respondent filed a supplementary affidavit explain why a similar date was entered in the declaration form. stating the date on the Identity Card was in error this cannot

43.

Further counsel submitted that the 2

nd

and 3

rd

Respondents have a responsibility to investigate the compliance of the 1

st

Respondent with regard to minimal educational requirements which they failed to do.

44.

Counsel submitted further that where the 2

nd

and 3

rd

Respondents fail to discharge their mandate the court should step in to ensure that educational, moral and ethical conditions are adhered to.

Counsel posed a Question of what would happen if ex-facie the foreign documents are invalid and the 2rd and 3

rd

Respondents fail their legal mandate whether will the court turn a blind eye?

He answered in the affirmative that the Court has the power and duty so to intervene to prevent a violation of nomination process by the Respondents.

Submissions by 1

st

Respondent

45.

Counsel for the 1

st

Respondent identified 3 issues for determination namely

i.

Whether the petition discloses any cause of action that has been violated.

ii.

Whether the 1

st

Respondent was lawfully nominated &

iii.

Who pays the costs.

46.

Counsel urged that neither the petition nor the application against the 1

st

Respondent show a cause of action or a right violated or infringement against the Petitioner. Counsel in this regard relied on the case of

Progressive Welfare Association of Malindi & 3

oth

ers v County Government of Kilifi & 4

ot

hers

[2020] eKLR.

47.

He submitted further that the 1

st

Respondent qualified to be nominated and has already been gazette. Further he contended that the petition before court does not meet the threshold as expounded in

Mumo Mutemo v Trusted Society of Human Rights Alliance & 5

ot

hers

[2013]

eKLR

.

48.

That the averments of the Petitioner do not disclose any cause of action; they are mere allegations without any force of evidence or law.

49.

Counsel submitted that in invoking Article 22 of the

Constitution

the Petitioner failed to particularize with specificity as to how, who and when the rights were violated. The Petitioner has not been denied to vote, to register or participate on the forthcoming elections. In support of this assertion reference was made to the case of

Elizabeth v President Court of Appeal & Another

(2 of 2009) [2010] SCCC 2

50.

On the second issue whether the 1

st

Respondent was lawfully nominated it was submitted that though the position of the Petitioner is that the 1

st

Respondent has no degree therefore not qualified, the 1

st

Respondent presented a Master’s degree and a letter from the 3

rd

Respondent confirming recognition of the said degree. The case of

Gole Nicholas v Loi Kageni Kiryapawo

SCEPP No. 19 of 2007 was referred to.

51.

The court was informed that the 1

st

Responded graduated on 13

th

November 2012 with a Master’s degree in Islamic Banking, Finance and Management from the University of Gloucestershire and awarded a Master’s degree.

52.

On 3

rd

June 2022 the 3

rd

Respondent confirmed through a letter that the said university is recognized and the qualification awarded also recognized.

53.

That in addition on 6

th

of June 1994 the 1

st

Respondent passed exams in Banking Services, monetary & financial systems, accountancy, management in Banking, Investment, Trade Finance – payments & services, Branch Banking Law and Practice & Marketing and was elected as an associate of the banker’s institute.

The court was referred to the case of

Microsoft Corporation v Mitsumi Garage Ltd

[2001] 1

EA

129.

54.

Further, Counsel asserted that the degree referred to under Section 22 of the

Elections Act

can be a bachelor’s degree, a master’s degree or a doctorate degree. The Act does not specify. Court was referred to

Janet Ndago Ekumbo Mbete v IEBC & 2

ot

hers

[2013]

eKLR

.

55.

Further it was submitted that there is no evidence that the papers presented to the 4

th

Respondent are a forgery or that they do not exist. The onus was on the Petitioner to show that the 1

st

Respondent does not possess academic qualifications.

In

Joy Kabatsi Kafura v Anifa Kawooya & Another

SCEPP

No. 20 of 2007 the court addressed the issue of presenting higher qualification as is required.

56.

It was submitted further that scrutinizing of academic documents is the mandate of one body, clearing for election the mandate of another body and the court should not interfere where there is no evidence of any wrong doing as was stated in

Justus Kariuki Mate & Another v Martin Nyaga Wambora &

an

other

(2017)

eKLR

and

Diana Kethi Kilonzo & Another v IEBC & 10

oth

ers

(2013)

eKLR

.

57.

Further, the Petitioner has not placed any iota of evidence to support any allegations made, he has not proved any prejudice that he is likely to suffer and to the contrary the 1

st

Respondent who qualifies and was cleared to vie for the Gubernatorial seat for Governor Garissa county stands to suffer. Court was referred to the case of

Ann Wambui Nderitu v Joseph Kiprono Ropkoi & Another

(2005) 1

EA

334 which was relied upon in the case of

Mourine Mukonyo v Embu Water and Sanitation Company

(2020) eKLR.

58.

As to costs, it was submitted that the Petitioner should bear the costs since the petition is not bona fides yet he approached the court in the name of public litigation. The court was referred to the case of

Jennifer Shamalla v Law Society of Kenya & 15 others

(2017)

eKLR

and a decision of Indian Supreme Court relied upon in the

Shamalla case

,

Ashok Kumar Pandey v. State of West Bengal

AIR 2004 SC 280.

2

nd

and 4

th

Respondents Submissions

59.

Seven issues were identified by the 2

nd

and 4

th

Respondents as follows;

a.

Whether the 2

nd

and 4

th

Respondents violated Article 88 (1), & 180 of the

Constitution

and Section 22 of the

Election Act

by issuing a nomination certificate to the 1

st

Respondent.

b.

Whether the Honourable court has the jurisdiction to usurp the mandate of the 3

rd

Respondent in its function of recognition and accreditation of foreign qualifications.

c.

Whether the Petitioner discharged the burden and standard of proof in alleging that the master’s degree by the 1

st

Respondent was obtained through fraud or forgery.

d.

Whether the issues before the court are pre-mature.

e.

Whether the Honourable court can usurp the authority of constitutional bodies with regard to investigations and prosecution of criminal offences.

f.

Whether the petition meets the requirement of precision required in filing Constitutional petitions.

g.

Whether the Petitioner should be granted access to academic documents submitted by the 1

st

Respondent for clearance in the 2013, 2017 and do 2022.

60.

In summary it was submitted that the 1

st

Respondent complied with all the legal requirements for clearance to vie for a gubernatorial candidature by filing the nomination form No. 17, self-declaration form 19, EACC self-declaration form, and resented a master’s degree certificate recognized by the 3

rd

Respondent.

61.

Further, in clearing the candidates, the 2

nd

and 4

th

Respondents do not have the mandate to verify the authenticity of the documents and more particularly the academic qualifications once endorsed by the 3

rd

respondent. The cases of

Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others

[2014]

eKLR

,

Dennis Gakuu Wahome v IEBC & 3 others

Petition No. 321 of 2022 (unreported).

EACC v Granton Graham Samboja and Another

(2021)

eKLR

,

Robert Uri Dabaly Jimma vKenya School of Law & another

[2020]

eKLR

.

62.

Further counsel urged that the court should decline the invitation by the Petitioner to determine whether the 1

st

Respondent possesses valid academic qualification to contest for the position of a County Governor and issuing the 1

st

prayer in the petition.

63.

Court was urged that Section 5(1)(g) of the

University Act

, 2012 places the duty of recognition of foreign academic papers upon the 3

rd

Respondent and Section 85 of the

Universities Regulations

2014 gives the opportunity to anyone aggrieved by the decision of the 3

rd

Respondent to write to the commission, thereafter to the Cabinet Secretary. Reference was made to the case of

Daniel Talengo Kiptunen v

R

epublic & 3 others

(2013)

eKLR

.

64.

It was also submitted that the burden of proof in elections matters was settled by the Supreme Court in

Election Petition No. 1 of 2017

- “The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one of the other parties to establish a case or to establish the facts upon a particular issue.”

65.

Further Section 107 of the

Evidence Act

places the burden of proof on a party who desires the court to give judgment or any legal right or liability on the existence of facts which he asserts to prove that those facts exist. Further reference was made

Raila Odinga 2013 case

.

Further where a criminal charge is linked to an election issue the burden of proof to be applied is beyond reasonable doubt -

Raila 2013

and

Khatib Abdalla Mwashetani v. Gideon Mwangangi Wambua & 3 Others

.

66.

The issue before the court on the authenticity or forgery of the academic papers it was submitted is prematurely before the court, as the relevant investigative bodies have not concluded their investigations. Reference was made to

Daniel Ogwoka Manduku v D.P.P & Another

(2019) eKLR.

And such an issue as forgery falls within the purview of the criminal justice system.

67.

Counsel further asserted that the petition does not meet the precision threshold in the

Anarita Karimi case

. The petition does not set with precision the Articles of the

Constitution

that have been violated and how the violation has affected the rights of the Petitioner. Reference was made to the case of

Godfrey Paul Okutoyi & Others v Habil Olaka & Another

[2018]

eKLR

.

68.

Further the 2

nd

Respondent is mandated with the authority of safe keeping of electoral materials as provided by Article 86(a) of the

Constitution

as read with Regulation 86 and 93 of the

Elections (General) Regulations

2012, rule 16 (3) of the

Elections (Parliamentary & County Election) Rules

2017 and Regulation 17 of the

Elections (technology) Regulations

2017).

Materials are to be maintained for only 3 years unless for exceptional circumstances.

3

rd

Respondent’s Submissions

69.

Counsel for the 3

rd

Respondent associated with the submissions made by counsel for the 2

nd

and 4

th

Respondent.

Analysis and Determination

70.

The court has carefully considered the pleadings, submissions and authorities relied upon by the parties, having so considered, the issues before court for determination are three namely;

a.

What is the case before the court; whether jurisdiction of the court was properly invoked.

b.

Whether the petition meets the required threshold espoused in the Anarita case.

c.

Whether the nomination of the 1

st

Respondent by the 2

nd

and 3

rd

Respondent to vie for the position of Governor Garissa County was a violation of the

Constitution

.

d.

Costs

71.

The Petitioner moved this court pursuant to Articles 165(3) (d) (ii) as read with Article 23 (1) of the

Constitution

. In paragraph 23 and 24 of the petition the Petitioner urged that no one is above the law and the court has the mandate to intervene to promote and protect the principles, values and purposes of the

Constitution

by addressing any violation of the

Constitution

.

72.

In particular, the Petitioner pleaded violation of Chapter Six of the

Constitution

as read together with the

Leadership and Integrity Act

and Articles 193(b) of the

Constitution

as he alleged that the 1

st

Respondent failed to satisfy the educational, moral and ethical requirements.

73.

It can be said that the gist of the Petitioner’s case is that the Respondents failed the provisions of Chapter Six and the

Leadership & Integrity Act

ignored the threshold provided for in Article 180 as read with Article 193 (3) of the

Constitution

.

74.

Article 88(4) (d) (e) of the

Constitution

and section 74(1) of the

Elections Act

places the responsibility of conducting and supervising elections on the 2

nd

Respondent. As regards the matter before court, Regulations of the process by which parties nominate candidates for elections, and the resolution of pre-election disputes as a mandate of the 2

nd

Respondent in the 1

st

instance.

75.

As stated in an earlier ruling where the Respondents challenged the jurisdiction of this court, that this court recognizes the mandate bestowed by the

Constitution

and statute on other bodies more so the 2

nd

Respondent and the court is guided by several authorities as cited by the parties such as;

Samuel Kamau Macharia & Another v KCB & 2 Others

[2012]

eKLR

,

Moses Mwicigi & 14 Others & IEBC

[2016] eKLR and

Geoffrey Muthinja Kabiru & 2 Others

[2015]

eKLR

76.

The court also considered the provisions of Article 22, 23 and 165 of the

Constitution

that stipulates

“

22

(1)

Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

(2)

In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a)

a person acting on behalf of another person who cannot act in their own name;

(b)

a person acting as a member of, or in the interest of, a group or class of persons;

(c)

a person acting in the public interest; or

(d)

an association acting in the interest of one or more of its members.

23.

(1)

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.

77.

Article 165 (3) Subject to clause (5), the High Court shall have—

(a)

unlimited original jurisdiction in criminal and civil matters;

(b)

……….

(c)

……….

(d)

jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

(i)

the question whether any law is inconsistent with or in contravention of this Constitution;

(ii)

the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

78.

Further the court was guided by the case of

Mohamed Abdi Mohammed v Ahmed Abdullahi Mohamed & 3 others; Ahmed Ali Muktar (I.P)

2019 eKLR where the Supreme Court in discussing the mandate of the

IEBC

, in vetting process of nominees for elective positions, the mandate of the election court, fortified the place of the High Court in matters arise during the process of elections under Article 165 of the

Constitution

.

The apex court placed the jurisdiction of the High Court under Article 165 to include preservation of the authority of the

Constitution

.

79.

The moment the Petitioner cited violation of Chapter 6 of the

Constitution

as read with

Leadership and Integrity Act

and as considered alongside Articles 180 and 193 (1) (b) the jurisdiction of this court kicked in.

80.

Matters pre-election are determined by the 1

st

Respondent or its organ; the Dispute Resolution Committee and/or the Political Parties Tribunal. This in itself however does not oust the jurisdiction of this court in the application, interpretation and protection of the

Constitution

as that indeed is a mandate of this court. Article 10 binds all state organs, public officers and all persons to national values and principles of good governance.

81.

Chapter 6 of the

Constitution

- Leadership and Integrity requires that public trust be exercised inter alia in a manner that is consistent with the purpose and objectives of the

Constitution

. The guiding principles of leadership and integrity to include selection on the basis of personal integrity, competence and suitability on election in free and fair election.

82.

The question of integrity in leadership has been an elusive issue which state agencies and entities shy away from as it appears to be a strange animal that we fear to confront or to dismantle. As it were the primary and ultimate organ in the protection and implementation of the

Constitution

is none other than the hub of justice, the seat of justice; the court. The mandate of upholding and protecting the

Constitution

squarely lies with the court.

83.

The issue in question in view of this court was rightly placed before it, the contestation is whether the violation of the

Constitution

; the question of integrity and credibility of the 1

st

Respondent as alleged was proved to the required standard.

84.

Before delving into whether the questions placed before the court were proved the court will consider whether the petition meets the necessary threshold; the precision principle.

85.

As indicated earlier the court was moved pursuant to Articles 22, 23 and 165 of the

Constitution

among other provisions.

86.

There is submission on the part of the Respondents that the petition before the court fails the precision test as espoused in the case of

Anarita Karimi Njeru v Republic

(1979)

KLR

154

“

……. we would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the

Constitution

, it is important (if only to ensure that justice is done to his case) that he should set out with a degree of precision that of which he complains, to the provisions said to be they are alleged to be infringed.”

87.

In

Mumo Matemo v Trusted Society of Human Rights Alliance and 6 Others

Civil Appeal No. 290 of 2012 referred to the

Anarita case

also referred to an English case of

Thorp v Holdsworth

(1876) 3

Ch. D

. 637 at 639 which holds true today as follows

“

The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

88.

The

Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

, 2013 (popularly referred to as “The Mutunga Rules”) also make provision to the contents in Rule 10 thereof.

89.

Further the Supreme Court in

Commercial Bank of Kenya & 5

oth

ers v Royal Media Services Ltd & 5

oth

ers

(2014) eKLR stated;

“

Although Article 22 (1) of the

Constitution

gives every person the right to initiate proceeding claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in

Anarita Karimi Njeru v Republic

[1979]

KLR

153, the necessity of a link between the aggrieved party, the provisions of the

Constitution

alleged to have been contravened, and the manifestation of contravention or infringement such principles plays a positive role, as a foundation of conviction, and good faith, in engaging the constitutional process in dispute settlement.”

90.

In considering the petition, it sets out the legal foundation of the case, facts relied upon and links the same to Articles of the

Constitution

allegedly violated which the court finds to have met the precision principles as set above.

91.

As to the clearance of the 1

st

Respondent, the evidence placed before the court by both sides is that on the 4

th

of June, 2022 armed with a master’s degree certificate in Islamic Banking, Finance and Management from the University of Gloucestershire and a letter from the 3

rd

Respondent recognizing the university and accrediting the degree, with a National Identity Card alongside other requisite forms and papers the 1

st

Petitioner presented his papers before the 4

th

Respondent who verified the same against a known check list in his possession, confirmed that the papers are in conformity with the

Constitution

and statute and cleared the 1

st

Petitioner as a candidate eligible to vie for the seat of Governor Garissa County.

92.

Article 180 (2) of the

Constitution

provides that to be eligible for election as a County Governor, a person must be eligible for election as a Member of County Assembly.

Article 193 (1) (b) states that a person is eligible for election as a Member of County Assembly if he satisfied any educational, moral and ethical requirements of the

Constitution

or an Act of Parliament.

93.

Section 22 of the

elections Act

reiterates the qualifications as set under the

Constitution

, in addition such a person must hold a post-secondary school qualification recognized in Kenya, & notwithstanding 1 (b) for a Governor or Deputy Governor they qualify only if the person is a holder of degree from the university recognized in Kenya.

94.

Based on the documents placed before the 4

th

Respondent and without any question or complaint issued the 4

th

Respondent cleared the 1

st

Respondent.

95.

Up to this this point on facts above the court finds no fault, neither a violation of either the

Constitution

or statute on the part of the Respondents.

96.

On the allegations by the Petitioner that the Master’s degree certificate was fraudulent as the 1

st

Respondent did not possess a 1

st

degree (bachelor’s degree) and could not therefore qualify to attain the Master’s degree; Secondly, the 3

rd

Respondent did not investigate the Master’s degree before recognizing the institution and accrediting the degree, thirdly that the 2

nd

and 4

th

Respondent did not interrogate the Master’s degree and both the 2

nd

and 3

rd

Respondent failed their respective mandate leading to a violation of the

Constitution

, and on the part of the 1

st

Respondent, that he placed before the 4

th

Respondent a fraudulent document, knowing well that he did not possess a 1

st

degree as the first degree he possessed in 2017 was a forgery, he had obtained a second Identity Card fraudulently aiming to obtain a clearance for the 2022 general elections, all this which brought to question of the 1

st

Respondent’s integrity and credibility and his action failed the credibility in line with Chapter 6 and the Leadership and Integrity.

97.

In considering whether the above was proved the court considered that Section 107 (1) of the

Evidence Act

places the legal burden to prove a fact exists on the proponent of the said fact.

98.

In the case of

Mourine Mukonyo v Embu Water and Sanitation Company

(2020)

eKLR

the court restated that legal position relied on in the case of

Anne Wambui Nderitu v Joseph Kiprono Ropkoi & Another

(2005) 1

EA

where the Court of Appeal had this to say on this subject;

“

As a general proposition under section 107(1) of the

Evidence Act

, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”

99.

The legal and evidential burden from the onset lies on the Petitioner he has to lay prima facie evidence before the court. In this instance it was expected that the Petitioner would place before the court evidence that;

i.

The 1

st

Petitioner was armed with a fraudulent degree from Karachi University which he used to obtain clearance in 2017.

ii.

The 1

st

Petitioner fraudulently changed his Identity Card from the one he presented in 2017 to what he presented in 2022.

iii.

The 1

st

Petitioner did not possess a valid master’s degree as the one he possessed was fraudulently obtained.

iv.

The 1

st

Respondent contravened provisions of the

Constitution

in particular Chapter 6 of the

Constitution

, as read with the

Leadership and Integrity Act

, Article 180 (1) as read with 193 (b) of the

Constitution

.

v.

The 2

nd

, 3

rd

and 4

th

Respondent violated similarly the above Articles of the

Constitution

by failure to carry out their constitutional and statutory mandates.

100.

The Petitioner did not place any evidence before the court to prove that the academic papers relied upon by the 1

st

Respondent in the 2017 General Election were a forgery. The Petitioner relied on hearsay and a newspaper cutting alleging that the academic papers were fraudulent as the 1

st

Petitioner could not have obtained a degree at the age of 15.

101.

Certainly the allegation that the 1

st

Petitioner had no degree as required to vie for seat of Governor was not discharged. The Petitioner’s allegation that the 2

nd

and 4

th

Respondents failed to verifying the degree certificate was not proved either, the Petitioner failed to challenge the decision of the 3

rd

Respondent to accredit the Master’s degree in the correct manner and in the right forum. These allegations appear to be at best based on speculation and ignorance of the processes and standards applied by the 3

rd

Respondent and which standards are applied world over to professional exams in particular those offered by the Chartered Institute of Bankers and the place of such professional exams in the hierarchy of higher diploma and professional certificate and their accreditation.

102.

The Petitioner equally failed to place before the court any prima facie evidence that would have shifted the burden of proof to the 1

st

Respondent or any Respondent for that matter.

103.

Placed before the court by the 1

st

Respondent nonetheless is evidence that his Master’s degree was validly obtained against a background of Associate examination in the field of banking and his admission as an Associate with the Chartered Institute of Bankers which exams were recognized by his university and the 3

rd

Respondent in accrediting the said degree.

104.

The 1

st

Respondent has also reasonably explained the circumstances under which his initial Identity Card had a wrong date of birth and how he acquired a new corrected Identity Card that tallies with the information in passport.

105.

The 2

nd

Respondent on its part produced the certificate of a degree in masters of Arts in Islamic Banking, Finance and Management dated 24

th

October, 2012 and a self-assessment declaration that th1st Respondent relied on in the 2017 elections and gave reasonable explanation as to why the records on 2013 were not available.

106.

On the alleged violation of the

Constitution

no iota of evidence was placed before to prove fraud that would taint the image and character of 1

st

Respondent as to question his educational, moral or ethical standing.

107.

To this end the Petition must fail.

108.

As to costs, the court is persuaded, that the same must be squarely borne by the Petitioner if for no other reason in a bid to discourage litigation based on rumors, hearsay, conjecture, speculation or meant to malign and discredit other parties.

And at best to encourage parties to follow due process in ascertaining authenticity of documents and information they come across.

DATED, DELIVERED AND SIGNED IN GARISSA THIS 21{{^ST

}}

DAY OF JULY, 2022.

…………………………

ALI-ARONI

JUDGE