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Petition E090, E168, E221, E230, E234, E249, E017, E109 & E010 of 2022 (Consolidated) on persons with integrity issues vying for public office in the General Elections

Constitutional Petition E090,E168,E221,E230,E234,E249, E017,E109 & E010 of 2022 (Consolidated)
DAS Majanja, EC Mwita & M Thande, JJ
June 24, 2022
 
 
Between
 
 
Okiya Omtatah Okoiti………………………………………………………………….1st Petitioner
Inuka Kenya Na Sisi………………………………………………………………….2nd Petitioner
Wanjiru Gikonyo………………………………………………………………….3rd Petitioner
Kenya Human Rights Commission………………………………………………………………….4th Petitioner
Transparency International Kenya………………………………………………………………….5th Petitioner
Edward C. Astiba T/A Edward C. Asitiba & Associates Advocates…………………………6th Petitioner
Mukidi D. Jwenge………………………………………………………………………………………..7th Petitioner
Anderson Warui…………………………………………………………………………………………….8th Petitioner
Kelvin Njui Wangari………………………………………………………………………………………..9th Petitioner
Silvester Kipkemoi Arap…………………………………………………………………………………10th Petitioner
Ndoro Kayuga…………………………………………………………………………………………………11th Petitioner
George Odhiambo………………………………………………………………………………………….12th Petitioner
Haki Yetu………………………………………………………………………………………………………13th Petitioner
Kituo Cha Sheria…………………………………………………………………………………………….14th Petitioner
Transparency International……………………………………………………………………………..15th Petitioner
Onchieku Heborn Mosiori……………………………………………………………………………….16th Petitioner
 
 
and
 
 
Attorney General………………………………………………………………………………………….1st Respondent
Ethics and Anti-Corruption Commission…………………………………………………………..2nd Respondent
Independent Electoral and Boundaries Commission………………………………………….3rd Respondent
Mike Sonko Mbuvi Gideon Kioko…………………………………………………………………..4th Respondent
Paul Karungo Thang’wa……………………………………………………………………………….5th Respondent
Wiper Democratic Movement………………………………………………………………………..6th Respondent
Samuel Otara Arama…………………………………………………………………………………….7th Respondent
Jubilee Alliance Party……………………………………………………………………………………8th Respondent
 
 
and
 
 
Commission on Administrative Justice…………………………………………………………..Interested Party
Kenya National Commission on Human Rights…………………………………………………Interested Party
National Cohesion And Integration Commission……………………………………………….Interested Party
Kenya Revenue Authority………………………………………………………………………………Interested Party
Director of Public Prosecutions………………………………………………………………………Interested Party
Inspector General of The National Police Service……………………………………………….Interested Party
Kenya Human Rights Commission……………………………………………………………………Interested Party
Katiba Institute……………………………………………………………………………………………..Interested Party
Transparency International……………………………………………………………………………..Interested Party
The Africa Centre for Open Governance…………………………………………………………….Interested Party
Legal Aid Clinic……………………………………………………………………………………………..Interested Party
County Assembly of Nairobi…………………………………………………………………………….Interested Party
Senate…………………………………………………………………………………………………………Interested Party
Mike Sonko Gideon Mbuvi Kioko………………………………………………………………………Interested Party
Ferdinand Ndungu Waititu Baba Yao………………………………………………………………….Interested Party
United Democratic Party (Uda)…………………………………………………………………………Interested Party
 
 
The High Court did not have the jurisdiction to determine petitions that raised abstract or hypothetical questions.
Courts existed to resolve actual disputes. They were not in the business of engaging in academic or abstract discourse that was not anchored in disputed facts. That was why the Constitution did not confer upon the High Court the jurisdiction to issue advisory opinions.
(Reported by John Ribia)
 
 
Brief facts
The instant matter contained nine consolidated petitions which concerned the interpretation and application of Chapter Six of the Constitution of Kenya, 2010 (“Chapter Six”) as it related to the electoral process and in particular the General Elections. The petitions were on qualification of candidates offering themselves for election.
 
 
The 1st petitioner was concerned that persons with integrity issues were vying for public office in the General Elections. Although the petition was general and did not target a specific person, the petitioner noted, for instance, that a person was elected as a Member of Parliament despite having being arrested, charged and dismissed from his high profile public sector position for receiving a bribe. He stated that it was a matter of public notoriety that many people adversely mentioned in theft of public funds, including the so called “COVID-19 billionaires”, were lining up to vie for positions in the forthcoming General Elections. He stated that those trends hampered good governance, transparency and accountability and undermined the Constitution. He sought interpretation of the Chapter Six as it related to qualifications and eligibility of persons seeking elective office.
 
 
The petitions also sought for the 1st respondent and/or leaders who had been impeached from public office due to gross misconduct and violation of the Constitution would be a threat to the Constitution if elected or re-elected back to public office.
 
 

Issues

  1. Whether the High Court had the jurisdiction to determine petitions that raised abstract or hypothetical questions.
  2. Whether filing a petition before the High Court revolving around electoral disputes relating to or arising from nominations before the dispute had been determined by IEBC’s Dispute Resolution Committee was an infringement of the doctrine of exhaustion of administrative remedies.
  3. Whether one could petition the High Court to interpret the Constitution on the ground that there were conflicting decisions that required harmonisation.

Held

  1. The Constitution of Kenya, 2010 (Constitution) ushered in leadership and integrity in chapter six. In essence, the people of Kenya wanted a break from a past characterized by endemic corruption, misuse and abuse of public office by their leaders, elected and appointed.
  2. In interpreting the Constitution, courts would interpret the Constitution in a manner that promoted its purposes and principles, promoted the rule of law and fundamental rights and freedoms and in a manner that contributed to good governance as guided by by article 259(1) of the Constitution.  Chapter Six of the Constitution (on integrity) and the various provisions that governed the electoral process were to be read together in a manner that gave full effect to the purposes of the Constitution.
  3. The jurisdiction of the High Court to adjudicate on matters of and concerning the Constitution was wide. The High Court had jurisdiction to entertain any question by any person regarding interpretation of the Constitution.