Kituo Cha Sheria v John Ndirangu Kariuki & another [2013] eKLR

Kituo Cha Sheria v John Ndirangu Kariuki & another [2013] eKLR

Case Metadata

Case Number:

Election Petition 8 of 2013

Parties:

Kituo Cha Sheria v John Ndirangu Kariuki & another

Date Delivered:

24 May 2013

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Kanyi Kimondo

Citation:

Kituo Cha Sheria v John Ndirangu Kariuki & another [2013] eKLR

Advocates:

Mr C Agwara & Ms C Mburugu for the Petiioner

Mr D Wambola for thev 1st Respondent

Ms Thanji for Ms Ndegwa for the 2nd Respondent

Court Division:

Civil

Parties Profile:

Private v Individual

County:

Nairobi

Advocates:

Mr C Agwara & Ms C Mburugu for the Petiioner

Mr D Wambola for thev 1st Respondent

Ms Thanji for Ms Ndegwa for the 2nd Respondent

Case Summary:

Brief facts

John Ndirangu Kariuki, the 1st Respondent, was elected a member of the National Assembly on 4/3/2013 to represent the people of Embakasi Central Constituency, Nairobi County. He was a

former mayor of Nairobi City. While still the mayor, he was convicted of abuse of office charges

in the Chief Magistrate’s Anti-corruption Court, Nairobi case Number 25 of 2002 Republic v John

Ndirangu Kariuki & another.

He was found guilty on two counts of obtaining by false pretences and uttering a false document.

He was fined Kshs 100,000 on each count. The nature of offences was relevant to the Petition

before the Court.

The Petitioner brought these proceedings to challenge the nomination and subsequent election

of the 1st Respondent. The main contention was that the 1st Respondent was not qualified to be

a candidate for election in view of the conviction. The 2nd Respondent’s (Independent Electoral

& Boundaries Commission) conduct in clearing the 1st Respondent to run for election and

confirming him as duly elected was impeached for the same reason.

Issues:

i. Whether the 1st Respondent met the Constitutional qualification threshold to vie for political

office despite the serious questions of integrity raised by the Petitioner.

ii. Whether the entity Kituo Cha Sheria had legal capacity to file and prosecute a petition in its’

own name.

iii. Whether the Respondent’s challenge that the Petitioner lacked legal capacity to sue before

court was a technical objection or a matter of substance and the law.

Constitutional law– petition- political rights- political rights of a candidate to vie for political officewhere

the 1st Respondent vied for political office and was elected despite previous conviction

for abuse of office- whether the 1st Respondent met the constitutional qualification threshold-

Constitution of Kenya, article 38(3)

Electoral law

- election petition- election petition challenging the nomination and subsequent

election of the 1st Respondent as a member of the National Assembly for Embakasi Central

Constituency on grounds that he did not meet the constitutional threshold to vie- a claim that he

had previously been convicted for abuse of office- whether the conviction affected his suitability

as a candidate- Elections Act, section 77- Elections (Parliamentary and County Elections) Petitions

Rules, 2013, rule 4.

Article 99 of the Constitution of Kenya, 2010 provides:-

“99(2) A person is disqualified from being elected a member of parliament if

the person –

(h) is found, in accordance with any law, to have misused or abused a State

office or public office or in any way to have contravened Chapter six.

(3) a person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted”.

Held:

1. The 1st Respondent, on the face of it, failed the qualification or integrity test under article 99(2(h).

He was convicted of abuse of office charges on 14/1/2004. He did not appeal the decision. He

purported to file an application 9 years later for leave to appeal out of time. This had all the

hallmarks of a self-serving afterthought. It was meant to create, during the nomination and in

the Petition the impression that there was a pending appeal yet there was none. There was doubt

that an application for leave to appeal out of time was what was contemplated by article 99(3).

2. If the Petition had been brought by a competent party the question whether the 1st Respondent

qualified for nomination and whether the 2nd Respondent erred in clearing him was not entirely

without merit.

3. Artificial legal persons could institute legal proceedings. The capacity to sue and be sued in

their own names wass however limited. Incorporated companies and statutory corporations

are clothed with that legal power. A relevant example was is the Legal Advice Centre. It

was registered as a non-governmental organization. By virtue of section 12(3) of the Non-

Governmental Organizations Co-ordination Act, the Centre had perpetual succession and

power to sue and be sued in its own name. Had the Centre brought the proceedings in its own

name, that debate would have been unnecessary.

4. Article 38 of the Constitution enshrined political rights. The rights secured were for adult

citizens and it guaranteed citizens freedom to make political choices and provided that every

adult citizen had the right without unreasonable restriction, to be a candidate for public office

and if elected to hold office.

5. Neither non-citizens nor a minor could bring an action to enforce the right. While article

258 contemplated a party acting in person or by a representative to enforce the Constitution,

the nature of political rights could as well preclude non-political actors such as corporations.

However, within the context of an election, and once a candidate was duly elected, the

enforcement of the political right would be limited to the narrow confines of the Elections Act.

In that limited space, the Petitioner being an unincorporated person had to meet the strict code

governing electoral dispute settlement.

6. In the equivalent continuum of a National Assembly election, there were various independent

state actors such as the Independent Electoral and Boundaries Commission (IEBC) under the

IEBC Act, and the Ethics and Anti-Corruption Commission (EACC) under the EACC Act that

had jurisdiction to settle nomination disputes. However, the Petitioner had not sought redress

from the IEBC on nomination of the 1st Respondent.

7. The High Court was not divested of jurisdiction in all matters relating to nomination. If by

negligence or otherwise, a non-citizen was nominated for election and elected, it would have

been perfectly in order for the Court to right the wrong. Further, where IEBC had failed to

exercise its mandate under the statute, the High Court could intervene as was held in the case

of Luka Lubwayo & another v Gerald Otieno Kajwang & another [2013] eKLR

8. The incompetence of the Petitioner to sue was not a simple technical matter that could be

cured by the provisions of article 159(2)(d) of the Constitution or rule 4 of the Petition Rules.

The failure to bring an action by a recognized juridical person was one of law and substance

and went to the root of the Petition hence the substratum upon which the Petition had been

brought was compromised completely.

The Petition struck out and dismissed. Petitioner to pay costs assessed at Ksh150,000.

Cases:

East Africa;

1.

AN Phakey v World Wide Agencies Ltd

[1948] Vol XV EACA 1 - (Explained)

2.

Centre for Rights Education and Awareness (CREW) &7 others v Attorney General

Petition No

16 of 2011 - (Mentioned)

3.

Coast Projects Ltd v MR Shah Construction

[2004] KLR 119 – (Followed)

4.

D T Dobie & Company (Kenya) Limited v Muchina

[1982] KLR 1 (Mentioned)

5.

Dickson Karaba v John Ngata Kariuki & another

2010 e KLR, (Mentioned)

6.

Famy Care Limited v Public Procurement Administrative Review Board & another

Petition 43

of 2012 – (Explained)

7.

Fort Hall Bakery Supply Co v Fredrick Muigai Wangoe

[1959] EA 474 - (Explained)

8.

Francis Ngira Batware v Ashimosi Shatabansi t/a Ashimosi Shatabansi & Associates Advocates

& 2 others

Nairobi High Court case 476 of 2009 - (Explained)

9.

In the matter of the Gender Representation in the National Assembly and Senate

Advisory

opinion No 2 of 2012 - (Explained)

10.

International centre for policy and conflict and others v Attorney General & 2 others

Petitions

552 of 2012 - (Explained)

11

. Kanyua, Priscilla Nyokabi v Attorney General &another

Petition 1 of 2010 - (Explained)

12.

Kariuki, Steven v George Mike Wanjohi & 2 others

Petition No 2 of 2013 - (Explained)

13.

Kenya National Union of Nurses v Attorney General Cause

No 1049 of 2012 - (Explained)

14.

Kones v Republic & another exparte Kimani wa Nyoike & 4 others

[2006] 2 KLR 226 –

(Mentioned)

15.

Lubwayo, Luka Angaiya & another v Gerald Otieno Kajwang & another

Petition 120 of 2013

- (Explained)

16.

Muiya v Nyaga & 2 others

[2008] 2 KLR (EP) 493 - (Explained)

17.

Narok Council v Transmara County Council

[2002] 1 EA 161 - (Explained)

18.

Nyambega, Mose v Walter Nyambati & 2 others

Petition 4 of 2008 -(Mentioned)

19.

Odinga, Raila &2 others v Independent Electoral and Boundaries Commission & 3 others

Petition No 5 of 2013 - (Explained)

20.

Otaja, Samuel Otieno v IEBC & 2 others

Judicial Review No 20 of 2013 - (Mentioned)

21.

Parsimei, Francis Gitau v National Alliance Party & 2 others

Petition 356 of 2012 – (Mentioned)

22.

Rumanywa Sikudhani Ajwang v Pius Otieno & 2 others

Petition 53 of 2012 - (Explained)

23.

Sankale Ole Kantai t/a Kantai & Company Advocates v Housing Finance Company of Kenya

Limited

Case No 471 of 2012 – (Mentioned)

24.

Savana Jua Kali Association v Amos Ngata

Civil Case No 529 of 2004 - (Explained)

25.

Speaker of the National Assembly v James Njenga Karume

[1992] KLR 22 - (Explained)

26.

Waititu, Ferdinand v IEBC & 6 others

Petition 1 of 2013 - (Mentioned)

27.

Wambua v Wathom

e [1968] EA 40 - (Followed)

28.

Wanyoike v Electoral Commission of Kenya

(No 2) [2008] 2 KLR (EP) 43 - (Mentioned)

United Kingdom;

29.

Banque Internationale de Commerce de Petrograd v Goukassaow

[1923] 2 KB 682 -

(Mentioned)

30

. Dyson v Attorney General

[1911] 1 KB 410- (Explained)

Statutes:

East Africa;

1. Constitution of Kenya, 2010 articles 7, 22, 38, 88(4)(e); 99(2)(h)(3); 103(g); 105(1)((a); 159(2)

(d); 258, 260 – (Interpreted)

2. Elections (Parliamentary and County Elections) Petition Rules, 2013 rule 36(1); 37(3) –

(Interpreted)

Advocates:

1. Mr C Agwara with him Ms C Mburugu instructed by the Petitioner, Kituo Cha Sheria.

2. Mr D Wambola for 1st Respondent instructed by Ongoya & Wambola Advocates.

3. Ms W Thanji for Ms Ndegwa for 2nd Respondent instructed by Sisule Munyi Kilonzo &

Advocates

History Advocates:

Both Parties Represented

Case Outcome:

Petition struck out

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

High Court at Nairobi (Nairobi Law Courts)

Election Petition 8 of 2013

KITUO CHA SHERIA ………………………………………….……………...….…PETITIONER

VERSUS

JOHN NDIRANGU KARIUKI………................................................................1

st

RESPONDENT

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION……..….............2

ND

RESPONDENT

RULING

1.

John Ndirangu Kariuki, the 1

st

respondent, was elected a member of the National Assembly on 4

th

March 2013. He represents the people of Embakasi Central Constituency, Nairobi County. He is a former mayor of Nairobi City. On 14

th

January 2004, and while still the mayor, he was convicted of abuse of office charges in the Chief Magistrate’s Anti-corruption Court, Nairobi case Number 25 of 2002

Republic Vs John Ndirangu Kariuki and another

. He was found guilty on two counts of obtaining by false pretences and uttering a false document. He was fined Kshs 100,000 on each count. The nature of offences are relevant to the petition now before the court. He had falsely presented to the City Council that he was renting some residential house. As the mayor, he was entitled to rented premises. A lease was prepared for LR 97/2337. It was for Kshs 80,000 per month. It was later amended at the instance of the accused to read LR 2387, Avenue Park, Nairobi. It transpired later that there was no property known as LR 2387 Nairobi and that the other property in the original lease in fact be belonged to the mayor.

2.

The petitioner has brought these proceedings to challenge the nomination and subsequent election of the 1

st

respondent. The gravamen is that the 1

st

respondent was not qualified to be a candidate for election in view of the conviction. The 2

nd

respondent’s conduct in clearing the 1

st

respondent to run for election and confirming him as duly elected is impeached for the same reason.

3.

The petition before the Court is unique in its character: It is brought, not by a voter or a loser in the election, but by a non-human

persona

known as

Kituo Cha Sheria.

Secondly, the petitioner does not take up cudgels on any aspect of the conduct of the general elections of 4

th

March 2013. The petitioner only takes umbrage to the

nomination or qualification

of the 1

st

respondent to contest that election.

4.

The 1

st

respondent has now presented a notice of motion dated 29

th

April 2013 praying that the petition be struck out. It is predicated on 4 primary grounds:

a)

A dispute as to the eligibility of a candidate to contest a seat of member of the National Assembly, on the face of it, is a nomination dispute which is not within the jurisdiction of this Honourable Court.

b)

On the assumption that all the facts pleaded by the Petitioner are true, the court lacks jurisdiction to entertain this petition.

c)

On the assumption that the facts pleaded by the petitioner are true, the petitioner is a non-entity and lacks the requisite locus standi to file and prosecute this petition.

d)

The petitioner has failed to join the returning officer who is a mandatory respondent in election petitions.

5.

The motion is contested. The petitioner filed a replying affidavit sworn by Gertrude Angote on 16

th

May 2013. It is deponed that the petitioner is registered under the Non-Governmental Organizations Co-ordination Act as the

Legal Advice Centre

“which translates to

Kituo Cha

Sheria

in Kiswahili”. A copy of the registration certificate is annexed to the petition marked ‘GA 1’. The constitution of the petitioner and its strategic plan 2009 to 2013 is also annexed. The petitioner contends that it is a non-partisan, not-for-profit organization and one of the oldest institutions carrying out legal aid and public interest litigation.

6.

It is averred that the petition raises weighty constitutional questions on the integrity of the 1

st

respondent and his clearance by the 2

nd

respondent to run in the general elections. The petitioner’s case is that under article 258 of the constitution, as read together with articles 22 and 260, it has

locus standi

in the petition. It is deponed that there is no mandatory requirement in the Elections Act to enjoin a returning officer into the petition. Further that the named respondents are the true respondents to the issues raised in the petition. The objections by the respondents are thus of a technical nature and should be frowned upon in view of the Court’s overriding objective. Lastly, it was deponed that no prejudice will be suffered by the 1

st

respondent if the matter is heard on its merits.

7.

The petition came up for directions on 13

th

May 2013. I directed all the parties to file and exchange skeleton submissions

before

the hearing slated for 17

th

May 2013. Only the 1

st

and 2

nd

respondents complied. The petitioner’s learned Counsel, Mr. Osoro, said he was under the impression that he would file his submissions

after

service by the applicants. That was clearly not the direction by the Court. To be fair to the petitioner, I then ordered that it would reply to the application by detailed oral submissions. It prayed for 25 minutes to do so. In view of the fact that the petitioner had 3 learned counsel in Court, and who all wished to address the Court, I granted them additional time. Mr. Osoro, learned counsel took the entire 25 minutes, Mr. Agwara took a further 15 minutes while Ms Mburugu took 10 minutes: in all, the petitioner had the lion’s share of the Court’s time. The 1

st

and 2

nd

respondents’ learned counsel Mr. Ongoya and Ms Ndegwa briefly highlighted their written submissions both dated 17

th

May 2013.

8.

I am grateful to all the lawyers for their diligent research. It is imperative that I capture the pertinent parts of those submissions. The applicant’s case in a nutshell is that the

grievances by the petitioner pre-date the election. The law has elaborate procedures for settling nomination disputes. If the main grievance is that the 1

st

Respondent ought not to have contested the Embakasi Central seat, then the petitioner should have followed the procedures laid down in law to challenge the nomination. In this regard, he relied on the cases of

Francis Gitau Parsimei Vs The National Alliance Party & Others

Nairobi, High CourtPetition 356 of 2012 [2012] e KLR,

Sikudhani Vs Pius Otieno & 2 Others

Nairobi, High Court Petition 53 of 2012 [2013] e KLR,

Kipkalya Kones Vs Republic

Civil Appeal 94 of 2005 2006 e KLRand

Samuel Otieno Otaja Vs IEBC and 2 others

Nairobi JR [2013] e KLR 20 of 2013

9.

In relation to the

locus standi

of the petitioner, counsel for the 1

st

Respondent referred the court to annexture ‘GA1’, which shows that the petitioner is registered as

Legal Advice Centre

, a non-governmental organization. It was his submission that under our law, non-governmental organizations are body corporates which have the right to sue and be sued in their own name. Since

Kituo Cha Sheria

is not registered as such, the petition is incompetent and should be struck out.

10.

The applicant submitted on the meaning of a

respondent

under Rule 2 of the Elections (Parliamentary and County Elections) Petition Rules (hereafter “the Rules”). It was, in his view, a fatal error to exclude the returning officer from the named respondents. He relied there on the decision in

Mose Nyambega Vs. Walter Nyambati and others

Kisii, High Court Petition 4 of 2008 [2008] e KLR.

11.

Learned counsel for the 2

nd

respondent, Ms. Ndegwa, associated herself with the submissions of Mr. Ongoya. She added that the petitioner is not a person endowed with rights under article 38 of the Constitution and it therefore cannot challenge an election under the Constitution. She relied on the case of

Famy Care Limited Vs. Public Procurement Administrative Review Board &

Another

Nairobi, High Court Petition 43 of 2012 [2012] e KLR.

12.

The petitioner’s answers were as follows. On the jurisdiction of the court, the petitioner submitted that the application is a stratagem contrived to defeat the Constitution. Mr. Osoro highlighted the history of the petition beginning with the conviction of the 1

st

Respondent in the Anti-corruption Chief magistrate’s Criminal Case 25 of 2002, to the judicial review application number 452 of 2012, Nairobi, filed by the 1

st

respondent. The latter was triggered by a recommendation of the Commission on Administrative Justice to the 2

nd

Respondent not to clear the 1

st

Respondent to run for political office. The judicial review application was dismissed on the 28

th

of January 2013 on merit.

13.

The petitioner’s counsel relied on the decision in

Luka Angaiya Lubwayo and another Vs Gerald

Otieno Kajwang

and another

Nairobi, High Court Petition 120 of 2013 [2013] e KLR for the proposition that the Court can hear the petition on its merits.

Since the IEBC had failed to investigate the qualification of the 1

st

Respondent, the duty now lies with the Court. If for example the 2

nd

Respondent arrived at a perverse decision, then the court is vested with jurisdiction. He referred to article 103 as read with article 99 (2) (h) and article 99 (3) of the constitution. The petitioner had established that there was a conviction for abuse of office and that there was no pending appeal. This was evidenced by the letter from the Registrar of the High Court dated 20

th

of December 2012 which showed that the 1

st

respondent had not lodged an appeal.

14.

Learned Counsel for the petitioner further submitted that the elections are a continuum. Accordingly, only the court has ultimate jurisdiction to hear and determine this matter. Moreover, this court is the only forum that can issue the orders sought for two reasons: there is a timeline for challenging the validity of an election; and, that failure to do so would deny the petitioner the right to enforce the Constitution under article 165 (2) (d). He also cited article 159 (2) (d).

15.

Mr. Agwara’s view was that the petition is primarily anchored on article 99 (2) of the Constitution which refers to election to Parliament and not the nomination of candidates. Referring to article 88 (4) (e), he submitted that the IEBC is precluded from addressing any issue arising after the declaration of the results and that this was further buttressed by article 105. He relied on

Ferdinard Waititu Vs. IEBC & Others

Nairobi, High Court Petition 1 of 2013 [2013] e KLR. He submitted that article 103 (g) anticipates a situation where an elected member of parliament can be disqualified on the basis of article 99. Such a determination can be made under article 105. Mr. Agwara disputed the assertion that there is a mandatory requirement to enjoin the returning officer. He referred to Rule 2 and stated that the rule merely defined the parties: the other persons referred to in Rule 2 (d) are dictated by the nature of the petition. He further asserted that there is no requirement under Rule 9 for the returning officer to be included and that, in any case, no prejudice would be occasioned since the 2

nd

Respondent has responded to the petition by the affidavit of the returning officer.

16.

Lastly Ms. Mburugu, also for the petitioner, submitted that the petitioner was well within the boundaries of its own constitution which provides that the

Legal Advice Centre

shall also be known as

Kituo cha Sheria.

She stated that the constitution and the registration certificate are not in conflict. Article 7 of the Constitution of Kenya provides that the national language of Kenya is Kiswahili. English is an official language. Therefore, the translation of Legal Advice Centre into Kiswahili as

Kituo Cha Sheria

is legitimate. Accordingly, the petitioner is properly before the court.

17.

Ms. Mburugu also submitted that the court has, by its previous conduct, admitted the status of

Kituo cha Sheria.

In this regard counsel referred to Petition 120 of 2012

Luka Angaiya Obwayo&

Another v. Gerald Otieno Kajwang

(supra)as an admission by the courts of the

bona fides

of

Kituo Cha Sheria

. In her view, the petitioner is not seeking to enjoy civil and political rights under Article 38: rather the petitioner seeks to enforce article 99of the Constitution. She asserted that every person has the right to institute court proceedings to claim that the Constitution has been contravened. In her view

Kituo Cha Sheria

is a legal person within the meaning of Article 258 of the Constitution.

18.

None of the parties addressed the court on the status and import of the application for leave to file an appeal out of time that was lodged by the 1

st

Respondent on the 20

th

of December 2012. It appears that the 1

st

respondent deliberately left the court in a blind spot. Was leave finally granted or denied? Has that motion been heard? I will revisit that matter on my independent findings from the record in that suit.

19.

I have carefully considered the rival submissions. I am of the following considered opinion. Striking out an action is a draconian measure to be employed sparingly. It is to be meted out only in the clearest of cases and where the action has no legs to stand on. That is the common thread in a long line of decided cases. See

Wambua Vs Wathome

[1968] E.A 40 and

Coast Projects Ltd Vs M.R. Shah Construction

[2004] KLR 119,

Sankale Ole Kantai t/a Kantai & Company Advocates Vs Housing Finance Company of Kenya Limited

Nairobi, High Court case 471 of 2012 (unreported),

Dyson Vs Attorney General

[1911] 1 KB 410 at 418, and

Musa Misango Vs Eria Musigire and others

[1966] E.A. 390 at 395.

20.

The dictum of Madan J.A. (as he then was) in

D T Dobie & Company (Kenya) Limited Vs Muchina

[1982] KLR 1 is an all time classic. He said at page 9;

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”.

See also

Francis Ngira Batware Vs Ashimosi Shatabansi t/a Ashimosi Shatabansi & Associates Advocates and 2 others

Nairobi High Court case 476 of 2009 [2013] e KLR.

21.

In the unique circumstances of an election petition where political rights are at stake, that principle of restraint becomes paramount. See

Steven Kariuki Vs George Mike Wanjohi and 2 others

Nairobi, High Court Petition No 2 of 2013 (unreported).

22.

The court, in the election petition of

Dickson Karaba Vs. John Ngata Kariuki & Another

2010 e KLR,stated as follows:

“…striking out is a very serious matter, it is draconian and it should be resorted to as an avenue when the cause filed is hopeless or it is meant or intended to abuse the process of the court…The court cannot also exercise its inherent jurisdiction, when the exercise will lead to an injustice……”.

23.

This petition is proceeding against the backdrop of the Constitution of Kenya 2010. Article 159 of the constitution enjoins the court to administer justice fairly and without undue regard to technicalities. That is not to say that rules shall not apply. I recently had this to say on the matter in

Steven Kariuki Vs George Mike Wanjohi

petition (supra):

“But that is not to say that rules or technical rules shall not apply: only that the Court should not pay undue regard to them. If rules were to be thrown out of the window, chaos akin to a village baraza, will step in through the wide door. That was clearly not the intention of the legislature”.

24.

I was there relying on the landmark decision of our Supreme Court in

Raila Odinga and others Vs Independent Electoral and Boundaries

Commission and 3 others

Nairobi, Petition No. 5 of 2013 [2013] e KLR. The six learned Judges defined the spheres of article 159 2 (d) as follows:

“The essence of that provision is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties. This principle of merit, however, in our opinion, bears no meaning cast-in-stone, and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice, is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best course”.

25.

The principle to be distilled from all these cases is that where an action has a semblance of a cause of action or can be resuscitated by amendment it should, as far as practicable, be sustained. The converse is true. Where the action is so hopeless and has no legs to stand on, it must be dismissed at the earliest opportunity. There must then be a delicate balancing act of the competing interests of the disputants. At times, the Court must pay regard to the wider public interest. In the present petition one must weigh the underlying questions of integrity of the candidate (the constitutional qualification threshold) against the serious challenge that there is no petitioner before the court (the

locus standi

and competency question). A key plank of that consideration is whether the latter is simply a technical objection or one of substance and the law. If it be the latter, the integrity question to be urged in the petition becomes dead on arrival: there would be no petitioner or petition upon which to anchor those arguments.

26.

Article 38 of the Constitution enshrines political rights. The rights secured are for adult

citizens

. It guarantees citizens freedom to make political choices. It provides, in sub article (3) for example, that “every adult citizen has the right without unreasonable restriction, to be a candidate for public office …….and if elected to hold office”.

27.

Non-citizens cannot bring an action to enforce the right. I doubt very much that a minor would qualify. While article 258 contemplates a party acting in person or by a representative to enforce the constitution, the nature of political rights may as well preclude non-political actors such as corporations. But within the context of an

election,

and once a candidate is duly elected, the enforcement of the

political

right is limited to the narrow confines of the Elections Act. In that limited space, an unincorporated

persona

like the petitioner here must meet the strict code governing electoral dispute settlement. I am alive to the notion that the constitution must be read as a whole.

Centre for Rights

Education and Awareness (CREW) and 7 others Vs. Attorney

General

[2011] e KLR.

28.

D.S. Majanja J, has aptly captured the interplay between the constitution and electoral dispute settlement in

Dr. Calvin Kodongo and others Vs The

Transition Authority and others

Nairobi, High Court Petition 174 of 2013. He delivered himself thus:

“It is a cardinal principle of interpretation of the Constitution that it must be read as a whole and in this respect the provisions regarding the electoral and election process cannot be isolated and sacrificed at the altar of absolute individual rights and fundamental freedoms. The fundamental rights and freedoms guaranteed under the Bill of Rights are also given effect and realized within the framework of governance. Chapter seven and eight of the Constitution titled “Representation of the People” and “The Legislature” respectively give effect to the principle of sovereignty of the people articulated in the Preamble and article 1. These provisions are underpinned by various fundamental rights and freedoms, which include political rights guaranteed under article 38, which are given effect by provisions dealing with elections. Thus it must be clear that prayer (c) cannot be granted as the Constitution itself, while it contemplates, that a general election will be held for all the elective positions on one day, it provides for different modes of dispute settlement”.

29.

The petitioner does not challenge any aspects of the conduct of elections on 4

th

March 2013. It does not challenge the 1

st

respondent’s win. When one unpacks the petitioner’s case, it fundamentally impeaches the nomination of the 1

st

respondent by the 2

nd

respondent to contest the Embakasi Central seat. As I will discuss shortly, elections are not an event but a process. In that long process starting from registration of voters, nomination of candidates to the actual election, the Constitution and the law have anointed independent organs, besides the Courts, to deal with specific electoral disputes. In my view the petition as drawn does not find full support in article 38. See

Famy Care Limited Vs Public Procurement Administrative Review Board and another

Nairobi, High Court Petition 43 of 2012 [2012] e KLR,

International centre for policy and conflict and others Vs

Attorney General and others

Nairobi, High Court Petitions 552 of 2012 [2013] e KLR.

30.

That in fact is partly conceded by the petitioner: Its learned counsel’s view is that their petition is not truly anchored on article 38 but articles 88 (4) (e) and 99 (2) (h) of the Constitution as read together with articles 103 and 105. Those articles provide as follows:

“88 (4) The commission is responsible for conducting or supervising referenda and elections to any elective office …….in particular, for – (a)…(b)….(c)….(d)……..

(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;”

“99 (2) A person is disqualified from being elected a member of parliament if the person – (a) ….. (b) …...(c)…… (d)……. (e) …… (f)………. (g)

(h) Is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter six”.

“103 1 The office of a member of parliament becomes vacant – (a)…… (b)…… (c)…….. (d)………… (e)……… (f)………..

(g) If the member becomes disqualified for election to parliament under Article 99 (2)(d) to (h).”

“105 The High Court shall hear and determine any question whether –

a)

a person has been validly elected as a member of parliament or…….”.

31.

The Supreme Court in

Advisory opinion No 2 of 2012 In the

matter of the Gender Representation in the National Assembly and

Senate

[2012] e KLR acknowledged that elections are not an event but a process: a continuum. The learned Judges, when considering the jurisdiction over presidential election disputes delivered themselves 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”.

32.

A parallel can be drawn. In the equivalent continuum of a national assembly election, there are various independent state actors and institutions with jurisdiction to settle nomination disputes. They include the IEBC under the Independent Electoral and Boundaries Commission Act and the Ethics and Anti-corruption Commission under the Ethics and Anti-corruption Act. For example article 88 (4) (e) that I cited earlier bestows on the IEBC jurisdiction to hear and resolve nomination disputes. This is reinforced by section 74 (1) of the Elections Act. The petitioner here did not seek redress, for example, from the IEBC on nomination of the 1

st

respondent. This issue was addressed at length by a 5 Judge bench of the High Court in

International Centre for policy and conflict & 5 others Vs Attorney General and 4

others

High Court, Nairobi Petition 552 of 2012 [2013] e KLR. The court held:

“Where there exists sufficient and adequate mechanisms to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted. In this regard, we refer to the decision

In Re Francis GitauParsimei & others v. National Alliance Party and others

Nairobi Petition No. 356 of 2012 (unreported) in which the court emphasised the principle that:

“Where the Constitution and or a statute establishes a dispute resolution procedure, then that procedure must be used.”

33.

On that continuum then, there are key milestones for redress. See

Narok Council Vs Transmara

County Council

[2002] 1 E.A. 161,

The Speaker of the National Assembly Vs James Njenga

Karume

, Court of Appeal, Civil Application 92 of 1992 (unreported),

Kipkalya Kones Vs Republic & another ex parte

Kimani wa Nyoike & 4 others

[2006] e KLR,

Wanyoike Vs Electoral

Commission of Kenya (No 2)

[2008] 2 KLR (E.P) 43.

The petitioner tacitly concedes that it never sought such remedies at any of those steps manned by independent constitutional bodies, or that those bodies failed to give it redress. The 1

st

respondent did not hide his criminal past or conviction to IEBC. I have seen the document at page 12 of the 2

nd

respondent’s response to the petition. It comprises a statement pursuant to section 9 (1) and (m) of the first schedule (self declaration form). It is made to IEBC. The 1

st

respondent in that statement declares that on 14

th

January 2004 he was convicted in the criminal case and fined. The Commission on Administrative Justice recommended to IEBC not to nominate him. The 2

nd

respondent’s case is that it was the role of the Ethics and Anti-corruption Commission to enforce chapter six of the Constitution. There is back-peddling and buck-passing. The IEBC should be the last to feign ignorance of the question of qualification of the 1

st

respondent.

34.

That is not to say that the High Court is divested of jurisdiction in all matters relating to nomination. If for example, by negligence or otherwise, a non-citizen was nominated for election and elected, it would be perfectly be in order for the court to right the wrong.

In Luka Lubwayo and another Vs Gerald Otieno Kajwang

and another

Nairobi Petition 120 of 2013 [2013] e KLR the court found that where IEBC had failed to exercise its mandate under statute, the High Court could intervene. Article 105 1 (a) seems to widen the scope of the court in a petition to determine whether a person has been

validly

elected as a member of parliament. The question of validity may encompass the clearance to run.

35.

The 1

st

respondent, on the face of it, fails the qualification or integrity test under article 99 (2) (h). He was convicted of abuse of office charges on 14

th

January 2004. He did not appeal the decision. He has purported to file Nairobi Miscellaneous Criminal Application number 614 of 2012, a whole 9 years later for leave to appeal out of time. It bears all the hallmarks of a self-serving afterthought. It is meant to create, during the nomination and in this petition the impression that there is a pending appeal. There is none. I express very serious doubt that an application for leave to appeal out of time is what is contemplated by article 99 (3). That sub-article provides that a “person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted”. But there remains the possibility that such leave will be granted and an appeal lodged.

36.

Earlier I said that the respondents made no comment about that application. I exercised the inherent powers of the Court and called for the original record in the miscellaneous criminal Application 614 of 2012. True, it was filed on 20

th

December 2012, the same date the Chief Registrar of the Judiciary confirmed there was no appeal pending. The application came up on 21

st

January 2013 before Msagha Mbogholi J when he ordered service on the Director of Public Prosecutions. There has been no other action. I can only speculate for now. Theoretically, the 1

st

respondent’s intended appeal may come to fruition. If this petition had been brought by a competent party the question whether the 1

st

respondent qualified for nomination and whether the 2

nd

respondent erred in clearing him was not entirely without merit.

37.

From the nature of the pleadings in the petition, no reliefs were sought against the returning officer. The petitioner, like I said was not challenging any aspect of the

conduct

of the election. The requirements to enjoin the returning officer in section 2 of the Rules is not cast in stone. The petitioner in this case had enjoined the most relevant parties for the reliefs sought. It would be to turn logic onto its head to require every petition, even one

sui generis

like this one, to religiously follow the format of form EP1 in the Rules. Even those Rules themselves at rule 4 require this court to consider the overriding objective to do substantial justice. The decision in

Mose Nyambega Vs. Walter Nyambati and others

[2008] e KLR (supra) can thus be distinguished.

38.

It is trite that artificial legal persons can bring legal proceedings. The capacity to sue and be sued in their

own

names is however limited. Incorporated companies and statutory corporations are clothed with that legal power. A relevant example here is the

Legal Advice Centre.

It is registered as a non-governmental organization. By virtue of section 12 (3)of theNon- Governmental Organizations Co-ordination Act, the Centre has perpetual succession and power to sue and be sued in its own name. Had the Centre brought these proceedings in its own name, this debate would be unnecessary.

39.

As a general rule, unincorporated legal persons including societies, clubs and business-names can only bring proceedings through their registered or elected officials or in their proprietor’s names. See

The Fort Hall Bakery

Supply Co. Vs Fredrick Muigai Wangoe

[1959] E.A. 474 at 475. Templeton J, relying on

Banque Internationale de Commerce de Petrograd Vs

Goukassaow

[1923] 2 KB 682 found that the entity before the court was a mere name only and could not maintain the action. In the latter decision at page 688, Bankes L.J. delivered himself as follows:-

“the party seeking to maintain the action is in the eye of our law no party at all but a mere name only, with no legal existence”.

See also

Savana Jua Kali Association Vs Amos Ngata

[2005] e KLR,

Kenya National Union of Nurses Vs Attorney General

Industrial Court, cause 1049 of 2012 [2012] e KLR.

40.

That is apt in the present circumstances. From a legal standpoint, the entity known as

Kituo Cha Sheria

exists only in the internal constitution of the

Legal Advice

Centre.

The edition of the constitution annexed to the replying affidavit is undated. It ends abruptly at page 11. The execution pages are not attached. It is not even clear whether it was similar to the constitutive instruments and documents presented for registration in 1993 before the Non-Governmental Organizations Co-ordination Board. In the petition, at paragraph 1, the petitioner,

Kituo Cha Sheria

, describes itself as a “non-governmental organization”. There is no evidence of such registration. The entity so registered is the

Legal Advice Centre.

I readily find that

Kituo Cha Sheria

is not a party at all but a mere name. It is not illegal. But it can only maintain an action in that name through the officials named in the constitution of

Legal Advice Centre or

any other personnominated by its board. In the alternative and more conveniently,

Legal Advice Centre

trading as

Kituo Cha Sheria

can maintain such action. Needless to say, the

Legal Advice Centre

can of course maintain action in its own name. The legal capacity of a party to institute proceedings in court is not a

technical

matter or one of

form.

It is

not

a simple

misdescription

of names as obtained in the case of

A.N.

Phakey Vs World Wide Agencies Ltd

[1948] Vol XV EACA 1. Far from it. It is a substantive matter of law that cannot be accommodated within the latitude of article 159 (2) (d) of the Constitution or Rule 4 of the Elections (Parliamentary and County Elections) Petition Rules 2013. The petition is incapable of amendment at this stage in view of the strict time lines in article 87 of the constitution and section 77 of the Elections Act.

41.

Facts can be very stubborn. The fact is that the registered legal entity under the Non-Governmental Organizations Co-ordination Act is the

Legal Advice Centre.

That is explicit from the certificate of registration dated 11

th

March 1993 and annexed to the petition marked “GA 1”. Now,

Kituo cha Sheria

is not one and the same thing

in law.

It is not even the direct or exact Kiswahili interpretation. The word

advice

which translates to

ushauri

or

kushauri

in Kiswahili is not even there. In the strategic plan of the organization annexed to the petitioner’s replying affidavit there is a brief history. It says at page 6 that the organization was at one point registered as

Kituo Cha Mashauri

. So I am not far off the mark. But even assuming that

Kituo cha Sheria

is the Kiswahili equivalent of

Legal Advice

Centre

, the former is not an entity in law capable of bringing an action in its

own

name. If the petitioner wished to bring the action in the name of

Kituo cha Sheria,

the least that was required of it was to do so through its officials in its constitution or persons nominated by its board. A copy of that constitution is annexed to the replying affidavit of Gertrude Angote sworn on 16

th

May 2013 and marked “GNA 1”. From its heading or cover page, it is the constitution for

Kituo cha Sheria

or

The Centre for Legal Empowerment

. That is yet a new party. But to be fair to the petitioner, article 1 of that constitution states;

“The name of the Centre shall be Legal Advice Centre also known as Kituo Cha Sheria whose registered office shall be at Nairobi within the Republic of Kenya”.

42.

That constitution states that the Centre, and presumably the

Centre for Legal Empowerment

or the

Legal Advice Centre

shall also be known as

Kituo Cha Sheria

. But that internal constitution cannot override the law or bind third parties. The petitioner has not sought to amend the petition and the strict legal regime governing election petitions provides no window to do so now. The incompetence of the present petitioner to sue is not then a simple technical matter. As I have stated earlier, it cannot be cured by the provisions of article 159 2(d) of the constitution or Rule 4 of the Petition Rules. The failure to bring an action by a recognized juridical person is one of law and substance. It goes to the root of the petition. The substratum upon which the petition has been brought is thus compromised completely.

43.

The petitioner put forward an argument that

Kituo Cha Sheria

has previously brought proceedings and obtained reliefs at the High Court. An example was proffered where

Kituo Cha Sheria

brought proceedings against the Attorney General to assert the rights of prisoners to vote. I have perused the decision in

Ms Priscilla Nyokabi Kanyua Vs Attorney

General and another

Nairobi, Petition 1 of 2010. The proceedings were not brought in the name of

Kituo Cha Sheria

as is clear from the citation. They were brought by Ms Kanyua on behalf of it. I have also perused the decision in

Luka Angaiya Lubwayo and Kituo cha Sheria Vs Gerald Otieno Kajwang and

another

. Again

Kituo Cha Sheria

was only a co-petitioner.

44.

But even assuming for a moment that

Kituo Cha Sheria

brought the proceedings, the court in both cases was not asked and

did not

make a finding on the issue whether

Kituo Cha Sheria

could bring and maintain the proceedings in its own name. From the decisions I cited earlier on legal capacity of

persons

to bringaction, it is doubtful that that such a finding can be made. I am also fortified there because the legal regime governing election petitions is very strict. See

Muiya Vs Nyaga

& 2 others

[2008] 2 KLR (EP) 493 at 498. In the end, I have reached the conclusion that

Kituo Cha Sheria

is not a competent legal person as known under article 258 of the constitution, section12 (3) of theNon-governmental Co-ordination Act or any other statute. Its capacity to bring an action in its

own

name and a petition to challenge an election does not find support in the law or precedent. In the result, there is no

petitioner

in Court or a valid petition. It follows as a corollary that the petition is incurably defective. It has no legs to stand on. It is hereby struck out and dismissed.

45.

Costs ordinarily follow the event and are at the discretion of the Court. Rule 36 (1) of the Elections (Parliamentary and County Elections) Petition Rules 2013 provides as follows:

“36 (1) The Court shall, at the conclusion of an election petition, make an order specifying –

a)

the total amount of costs payable; and

b)

the person by and to whom the costs shall be paid”.

46.

If the Court does not do so, then the Registrar of the Court is required by Rule 37 to tax such costs. The 1

st

and 2

nd

respondents are entitled to costs. Those costs shall be paid by the petitioner. Parties have in the past abused the taxation process to exaggerate their costs at the expense of the losing party and the taxpayer. This petition has terminated early and before the hearing of any witnesses. Accordingly, and as per Rule 36 (1), I order that the petitioner shall pay costs assessed at Kshs 150,000 to the 1

st

petitioner who brought this motion and Kshs 100,000 to 2

nd

Respondent who joined in the motion. The total costs are thus Kshs 250,000 only. It is a reasonable and fair sum noting the nature of the matter and complexity of the issues. Both respondents have instructed counsel in the matter. They have filed responses to the petition. They have filed other depositions and written submissions relating to the motion for striking out. Their lawyers have appeared in court to contest the petition. They must look up to the petitioner for redress. Under Rule 37 (3), I direct that the whole of those costs shall be met from the money deposited by the petitioner as security in Court. The balance of that deposit shall be refunded to the petitioner.

It is so ordered.

DATED

and

DELIVERED

at

NAIROBI

this 24

th

day

of May 2013.

G.K. KIMONDO

JUDGE

Ruling read in open court in the presence of:

Mr. C. Agwara with him Ms. C. Mburugu instructed by the Petitioner, Kituo Cha Sheria.

Mr. D. Wambola for 1

st

Respondent instructed by Ongoya & Wambola Advocates.

Ms W. Thanji for Ms Ndegwa for 2

nd

Respondent instructed by Sisule Munyi Kilonzo & Advocates.