Case ID:50432

THE AFRICA CENTRE FOR OPEN GOVERNANCE(AFRICOG) v AHMED ISSACK HASSAN & another [2013] eKLR

Case Metadata

Case Number:

Petition 152 of 2013

Parties:

THE AFRICA CENTRE FOR OPEN GOVERNANCE(AFRICOG) v AHMED ISSACK HASSAN &another

Date Delivered:

08 Mar 2013

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Isaac Lenaola, David Amilcar Shikomera Majanja, Weldon Kipyegon Korir

Citation:

THE AFRICA CENTRE FOR OPEN GOVERNANCE(AFRICOG) v AHMED ISSACK HASSAN & another [2013] eKLR

Case Summary:

Reported by Emma Kinya Mwobobia

The petitioner, a non-governmental organization working in the area of Democracy, transparency, and open governance in Kenya filed a petition challenging the manual tallying of the presidential ballots without verification with the actual Constituency based results in the relevant submitted forms. The petitioner

inter-alia

sought orders for the High Court to stop the manual tallying of the presidential ballots and in the event that the respondents will have announced the presidential results by the hearing of the application, an order restraining the respondents from gazetting the results until hearing and determination of the petition herein.

The jurisdiction of the High Court is provided for under Article 165(3),(5) of the Constitution of Kenya, 2010 and further limited to various instances including matters reserved for the exclusive jurisdiction of the Supreme Court under the Constitution. The Constitution had also vested exclusive original jurisdiction to the Supreme Court to hear and determine disputes relating to elections to the office of the President arising under Article 140 which provided for the manner in which questions as to the validity of presidential elections shall be handled.

Issue:

Whether the High Court had jurisdiction to stop the manual tallying of the presidential ballots.

Jurisdiction

– High Court jurisdiction – jurisdiction of the High Court in determining matters on presidential elections – limitation of High Court jurisdiction - constitutional provision of Supreme Court having original jurisdiction to hear and determine disputes relating to elections to the office of the president – petitioner seeking orders to stop the manual tallying of the presidential ballots - where the matter involved the process leading to the declaration of a successful presidential candidate – whether the High Court had jurisdiction to stop the manual vote tallying of presidential elections - validity of the petition – Constitution of Kenya, 2010 Articles 165, 163 and 140

Held:

1. Jurisdiction was everything and without it, the court had no power to make one step. Where a court had no jurisdiction there would have been no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it was without jurisdiction.

2. The import of Article 165(3) and Article 140 of the Constitution was that where jurisdiction was exclusively donated by the Constitution to the Supreme Court, the High Court could not have invoked its jurisdiction under Article 165(3)(d)(ii) to enquire whether anything done under the authority of the Constitution was inconsistent with or in contravention of the Constitution.

3. According to the case in the

Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion Application No. 2 of 2012 (2012) eKLR,

there was no reason for the court to have presumed that the framers of the Constitution had intended that the Supreme Court should have exercised original jurisdiction only in respect of a specific element, namely, disputes arising after the election while excluding those disputes which might have arisen during the conduct of the election. The High Court has therefore no jurisdiction over any matter in which the Constitution had reserved for the exclusive jurisdiction of the Supreme Court.

4. The petition contained matters that involved the process leading to the declaration of a successful presidential candidate. The presidential election was not a single event but a process that flowed from nominations to election petitions subsequent to the declaration of presidential election results. The High Court could therefore not have appropriated jurisdiction to entertain the petition however urgent or important it may have been to the parties or the public.

5. The issues raised in the petition however, were not idle and should therefore be pursued in the right forum.

Petition dismissed.

Swahili Summary:

Mahakama Kuu Hayana Mamlaka Ya Kuzuia Kuhesabiwa Kwa Kura Kwa Mikono Katika Masanduku Ya Urais

Imeripotiwa na Emma Kinya Mwobobia

Masuala:

Kujua kama Mahakama Kuu yalikuwa na mamlaka ya kusitisha kuhesabiwa kwa kura za urais kwa kutumia mikono.

Mlalamishi, shirika lisilokuwa-la serikali akifanyia kazi katika sehemu ya Demokrasia, unyofu, na utawala wazi nchini Kenya aliweza kuandikisha kesi akipinga kuhesabiwa kwa kura za urais kwa mkono bila ya kuthibitisha matokeo halisi kutoka kwenye Eneo bunge katika matokeo yaliyofaa kwenye fomu zilizokuwa zilizofaa na zilizokuwa zimewasilishwa.

Mlalamishi hususan, Baina ya mambo mengine (inter-alia) alitafuta amri za Mahakama Kuu ili kusitisha kuhesabiwa kwa kura za urais kwa mikono na katika hali kwamba washtakiwa waliweza kutangaza matokeo ya urais kutokana na kusikizwa kwa ombi hilo, amri ya kuwazuia washtakiwa dhidi ya kuchapisha katika gazeti la serikali matokeo hayo mpaka pale ambapo kesi hiyo itasikizwa na kuamuliwa wakati ukifika.

Mamlaka ya Mahakama Kuu yametolewa katika Kifungu cha 165(3) (5) cha Katiba ya Kenya, 2010 na vilevile yamefinywa katika hali mbalimbali zikiwemo masuala yaliyohifadhiwa kwa mamlaka ya kipekee ya Mahakama ya Juu Zaidi katika Katiba. Katiba imeweza pia kupatia mamlaka asili ya kipekee katika Mahakama ya Juu Zaidi ili yaweze kusikiza na kuamua mizozo inayohusiana na uchaguzi katika ofisi ya Rais yanayotokana ama inayotokana katika Kifungu 140 kilichotoa namna ambavyo masuali yaliulizwa kuhusiana na uhalali wa uchaguzi wa Rais na vile utakavyofanywa.

Uamuzi:

Mamlaka yalikuwa kila kitu na bila hayo, mahakama hayakuwa na nguvu za kupiga hata hatua moja. Pahali ambapo mahakama hayakuwa na mamlaka pasingekuwa na msingi wowote wa kuendeleza taratibu huku idhibati nyingine zikisubiriwa na mahakama ya sheria kutoweza kufanya kazi kwa mujibu wa suala hilo lilokuwa mbele yake, pindi tu yanapochukua maoni kwamba hayakuwa na mamlaka.

Kuletwa kwa Kifungu cha 165(3) na Kifungu 140 cha Katiba kulikuwa kwamba pale ambapo mamlaka yalikuwa yametolewa na Katiba pekee kwa Mahakama ya Juu Zaidi, Mahakama kuu yasingeweza kutumia mamlaka yake kupitia katika Kifungu cha (165)(3)(d)(ii) ili kuchunguza kama chochote kingeweza kufanywa kupitia katika mamlaka ya Katiba ambayo yalikuwa hayatiririki na au katikaukiukaji wa Katiba.

Kulingana na kesi katika kanuni ya uwakilishi wa jinsia katika Bunge na Seneti, ombi la maoni shauriwa nambari 2012 (2012) eKLR, hakukuwa na sababu yoyote ya mahakama kuchukulia kwamba wandishi wa Katiba walikuwa wamenuia kwamba Mahakama ya Juu Zaidi yanafaa kutekeleza mamlaka asili ya kwa mujibu wa Kifungu mahususi, kwa jina, mizozo inayotokana baada ya uchanguzi huku yakikosa kujumuisha mizozo ile ambayo huenda ilitokana na kufanywa kwa uchanguzi.Mahakama Kuu hivyo basi hayana mamlaka dhidi ya suala lolote ambalo katiba ilikuwa imeifadhi kwa mamlaka ya kipekee ya Mahakama ya Juu Zaidi.

Kesi iliyokuwa na masuala yaliyohusisha mchakato uliyosababisha kutangazwa kwa mgombezi aliyefuzu wa urais.Uchanguzi wa kirais haukuwa tukio moja lakini mchakato ambao ulitiririka kutoka katika uteuzi kutoka katika kesi za uteuzi hadi uchanguzi hatimaye kuishia katika kutangazwa kwa matokeo ya uchangunzi wa kiraisi.Mahakama Kuu yasingeweza hivyo basi kukaribisha mamlaka hayo katika kukaribisha kesi hiyo licha ya dharura au umuhimu ambao wahusika wakuu wake au umma walikuwa nayo.

Masuala yaliyozuliwa katika kesi hiyo hata hivyo, hayakuwa hivi hivi tu na hivyo basi yalifaa kufuatiliwa katika mdahalo unaofaa. Kesi imetupiliwa.

Kesi lilitupiliwa mbali.

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

(NAIROBI MILIMANI LAW COURTS)

PETITION 152 OF 2013

THE AFRICA CENTRE FOR OPEN

GOVERNANCE(AFRICOG)....................................PETITIONER

AND

AHMED ISSACK HASSAN.................. .....1ST RESPONDENT

THE INDEPENDENT ELECTORAL

AND

BOUNDARIES COMMISSION..................2ND RESPONDENT

RULING

Introduction and Application

1.

The Petitioner, the African Centre for Open Governance (AFRICOG) is a non-governmental organization working in the area of democracy, transparency and open governance in Kenya. It filed the Petition dated 7th March 2013 together with a Notice of Motion supported by an affidavit sworn by Gladwell Otieno its Executive Director. The Motion seeks the following orders:

1)

This Application be and is hereby certified as urgent and service thereof be dispensed with.

2)

The Respondents be and are hereby directed to stop forthwith the manual tallying of the Presidential ballots without verification with the actual Constituency based results in the relevant forms.

3)

The Respondents be and are hereby directed to start the tallying and verification of the ballots of the Presidential election afresh.

4)

The Respondents be and are hereby directed to allow unhindered/unfettered access by the political party agents and accredited observers to witness and participate in the tallying and verification of the presidential ballots.

5)

The Respondents be and are hereby directed to revive and use the electronic tallying system and or continually explain to the public the nature of the failure of the tallying system and any information relating to any act that will affect the integrity of the election results.

6)

In the event that the Respondents will have announced the Presidential results by the hearing of this Application, an order restraining the Respondents by themselves, agents or assigns from gazetting or causing the gazettement of the results until hearing and determination of the Petition herein.

7)

Costs be in the cause.

2.

Before the Motion could be heard inter partes and noting the urgency of the matter, we directed the parties to address us on the jurisdiction of this Court to determine the Motion and the Petition.

The Submissions

3.

Mr. Ndubi, Advocate for the Petitioner submitted that the matter is not an election petition challenging the results of presidential elections but one premised on Article 38 which protects political rights and Article 138(3) (c) which obliges the Independent Electoral and Boundaries Commission (IEBC) to tally, verify, count and declare the results after an election.

4.

According to the Petitioner, the IEBC has failed to properly and competently tally and verify the results of the presidential elections for the 4th March 2013 Presidential Election. It seeks orders to compel the IEBC to obey and abide by the law. Mr. Ndubi contended that these are not matters or questions regarding the validity of the Presidential Election envisaged under Article 140 of the Constitution.

5.

Mr. Karori, Advocate for the 1st Respondent, the Chairperson of the IEBC and the Returning Officer for the Presidential Election, contended that under Article 87 and 163(3) of the Constitution, it is only the Supreme Court which has the exclusive jurisdiction to deal with the matters concerning Presidential election. He relied on Supreme Court Advisory Opinion;

Principle of Gender Representation in the National Assembly and the Senate, Advisory Opinion Application No. 2 of 2012 (2012) e KLR,

where it was held that all issues arising from and involving Presidential election are within the exclusive jurisdiction of the Supreme Court.

6.

Mr Nyamodi, Advocate for the IEBC, associated himself with the submissions of Mr. Karori and added that whereas it is true that the matter before the Court is not an election Petition, it arises from a process involving a presidential election. That process and all the issues arising from and around it are reserved for the exclusive jurisdiction of the Supreme Court. He further submitted that since no Presidential election results have been declared and no gazettement thereof has been made, then under Article 88(4)(e) of the Constititution, the dispute should be dealt with by the proper Court which in his view is the Supreme Court of Kenya.

Determination

7.

We have considered the singular issue before us which we had asked the parties to address us in

limine,

that is, whether this Court, the High Court, has jurisdiction to entertain this matter.

8.

We now make the following findings. First, the jurisdiction of the High Court is provided for by Article 165(3) of the Constitution. However, this jurisdiction is expressly limited by Article 165(5)(a) which states;

(5) The High Court shall not have jurisdiction in respect of

matters—

(a) reserved for the exclusive jurisdiction of the Supreme Court

under this Constitution;

9.

Second, Article 163(3) (a) of the Constitution provides that the Supreme Court shall have the exclusive original jurisdiction to hear and determine disputes relating to elections to the office of President arising under Article 140 of the Constitution which provides for the manner in which questions as to the validity of presidential elections shall be handled by the Supreme Court.

10.

The import of all the above provisions read together is that where jurisdiction is exclusively donated by the Constitution to the Supreme Court, the High Court cannot invoke its jurisdiction under Article 165(3) (d)(ii) and enquire whether anything done under the authority of this Constitution is inconsistent with or in contravention of the Constitution. In

Advisory Opinion No. 2 of 2012 (supra),

the Supreme Court in no uncertain terms settled that issue comprehensively. The Court rendered itself as follows;

“

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, 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. Article 137 of the Constitution provides for “qualifications and disqualifications for election as President” – and this touches on the tasks of agencies such as political parties which deal with early stages of nomination; it touches also on election management by the Independent Electoral and Boundaries Commission (IEBC). 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.

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? An analogy may be drawn with other categories of elections; Article 87(2), on electoral disputes, thus provides: “Petitions concerning an election, other than a Presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.” It is clear that Presidential elections have separate provisions, in Article 163(3) (a) which provides:

“

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......”

On a literal construction, it may be stated that the foregoing reference to “the elections to the office of President” suggests the draftspersons contemplated that several rounds of election may be involved, before the emergence of a duly elected President.

Besides, a reading of Article 87(2) alongside Article 163(3) suggests, as we perceive it, that the Supreme Court was intended to adjudicate upon all such disputes as would arise from the Presidential election. We find no reason to presume that the framers of the Constitution intended that the Supreme Court should exercise original jurisdiction only in respect of a specific element, namely, disputes arising after the election – while excluding those disputes which might arise during the conduct of election. ”

11.

This Court is bound by the above holding and is further expressly denied jurisdiction over any matter in which the Constitution has reserved for the exclusive jurisdiction of the Supreme Court.

12.

The matters arising from the Petition before us are matters that involve the process leading to the declaration of a successful presidential candidate. As the Supreme Court has stated above, the Presidential election is not a single event; it is a process from nominations to election petitions subsequent to the declaration of Presidential election results. This Court cannot appropriate jursdiction to entertain this matter, however urgent or important it may be to the parties or the public. As was stated in

The Owners of

Motor Vessel “Lillian S” v

Caltex Oil Kenya Ltd

[1989] KLR

“

Jurisdiction is everything. Without it, a court has no power to make one step, where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence and a court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction.”

We adopt the above holding as clearly applicable in the matter before us.

Conclusion and Disposition

13.

We have perused the Petition, the Supporting Affidavit and the Annextures to it, particularly copies of Form 36 for a number of Constituencies, although we have held that we have no jursdiction to entertain this matter and have declined to enter into the substance of the purported dispute before us, we however venture to say that the issues raised are not idle but should be pursued in the right forum.

14.

Having held, as we have done above, it follows that the proceedings before us having been instittuted in the wrong forum are misguided and both the Petition and the Notice of Motion are hereby struck off.

15.

As to costs, the nature of the matter would determine each party bears its own costs.

16.

Orders accordingly.

DATED DELIVERED AND SIGNED AT NAIROBI THIS 8TH DAY OF MARCH 2013

I. LENAOLA

JUDGE

D. MAJANJA

JUDGE

W. KORIR

JUDGE