Introduction
1. The Petition dated 9th September 2024 is supported by the Petitioner’s affidavit in support of even date and a supplementary affidavit dated 25th September 2024.
2. The Petition is founded on the Petitioner’s claim that the Respondent has failed to gazette him as the next priority candidate following a vacancy in the special Parliamentary seat left by the Hon. John Mbadi Ngongo who was appointed the Cabinet Secretary, to the National Treasury and Economic Planning on 24th July 2024.
3. The Petitioner contends that the Respondent’s failure to gazette his name for the said special Parliamentary seat is in contravention of the Constitution.
4. As a result, the Petitioner seeks the following reliefs:
i. A declaration do issue to the effect that the Gazettement of duly elected and/or nominated Members of Parliament such as the Petitioner herein, pursuant to an election and/or nomination is an administrative action, to be undertaken by the Independent Electoral and Boundaries Commission Secretary/Chief Executive Officer, Mr. Marjan Hussein Marjan or any such person occupying the said position at the time, and is independent on the composition or quorum of the Independent Electoral and Boundaries Commission.
ii. A declaration do issue that the failure and inaction by the Independent Electoral and Boundaries Commission to Gazette the name of Harold Kimuge Kipchumba as a nominated Member of Parliament is contrary to Articles 2, 3, 12, 21, 22, 27, 28, 47, 54, 56, 90, 97, 101, and 258 of the Constitution as read with Sections 4, and 5 of Fair Administrative Action Act.
iii. An order of mandamus do issue compelling the Independent Electoral and Boundaries Commission, through the Secretary/Chief Executive Officer Mr. Marjan Hussein Marjan or any person occupying the said position, to gazette the name of Harold Kimuge Kipchumba, as a nominated Member of Parliament.
iv. An order awarding costs of the Petition to the Petitioners.
Petitioner’s Case
5. The Petitioner states that he is a person living with a physical disability. He deponed that he ranks fourth person in order of priority in the Orange Democratic Movement Party (ODM), Party List that was submitted for the purposes of election (nominations) of Members of the National Assembly. This list was published on the Respondent’s official website on 28th July 2022.
6. The Petitioner asserts that the three persons ahead of him in the list were all nominated to Parliament as members of the National Assembly. Afterwards, Hon. John Mbadi Ngongo who was second in the list was appointed as the Cabinet Secretary, to the National Treasury and Economic Planning on 24th July 2024. As a result, Hon. Mbadi vacated his special seat in Parliament. This vacancy was further acknowledged by the National Assembly in its letter to the Petitioner dated 19th September 2024. This position had also been communicated to the Respondent by the Speaker of National Assembly vide a letter dated 14th August 2024.
7. The Petitioner contends that owing to this vacancy and being the next person in the Party list, he stands elected to Parliament in line with Article 97(1) (c) of the Constitution. In view of this, vide a letter dated 1st August 2024 addressed to the 1st Respondent’s Chief Executive Officer, Marjan Hussein Marjan, the Petitioner requested that his name be gazetted as the duly elected member of Parliament.
8. He contends that the Respondent declined to gazette his name owing to its lack of quorum as at the time, the Commission did not have a Chairman and Commissioners.
9. The Petitioner decries the Respondent’s CEO decision, as his failure to gazette him, creates an unnecessary constitutional crisis which makes Parliament to be unconstitutionally constituted. He maintains that the situation can be remedied by gazetting his name as the next person in the order of priority.
10. For this reason, the Petitioner argues that the Respondent’s failure to Gazette him is in contravention of his rights under Article 27, 38 and 47 of the Constitution and Section 37(1) of the Elections Act.
Respondent’s Case
11. The Respondent in response filed grounds of opposition dated 24th September 2024 on the basis that:
i. The Notice of Motion has blatantly disregarded the legal and constitutional framework for conduct of elections thereby rendering the Notice of Motion dated 9th May, 2024 incompetent and devoid of merit for the following reasons:
a. Article 90 of the Constitution as read with Article 177 (1) (b) of the Constitution provides for election by Party Lists submitted by Political Parties.
b. Article 90((2) of the Constitution gives the Members of the Respondent the constitutional mandate to conduct elections through Party Lists from Political Parties.
ii. The Respondent is not quorate due to lack of Chairperson and Commissioners and in its current state may not be legally mandated to act on the Notice of Vacancy issued by the Speaker of the National Assembly in view of Article 88, 90 and 250(1) of the Constitution as read with Sections 4 and 5 of the Independent Electoral and Boundaries Commission Act.
iii. The Secretariat of the Respondent cannot process the conducted elections or allocate or re-allocate Party Lists for the following reasons:
a. The functions of the Respondent's Secretariat under the provisions of Section 11 and 11A of the CAP 7C do not include conduct of elections or the allocation or re-allocation of special seats.
b. The functions of the Secretary to the Respondent (who is its Chief Executive Officer (CEO)), under Section 10(7) of the IEBC Act does not include conduct of elections or the allocation or re-allocation of Special Seats as affirmed by the High Court in Constitutional Petition No. E003 of 2024, Ann Wambui vs IEBC and 2 Others where the Court held that-
"ln my view, the petitioner has not pointed or identified any provision in the Constitution or the written law, which confers on the Chief Executive Officer the power to gazette any person to fill a vacant political post without the actual involvement of the Commissioners. On that account, this petition will fail."
iv. The Respondent and its CEO are two different offices/entities though related. A perusal of the Application is that the Petitioner is seeking Orders against the Commission Secretary/CEO who is not a party in this matter and as such the Application ought to be struck out. The Court in Ann Wambui (supra) while answering the question whether the Petitioner would succeed to get Orders against the CEO having sued IEBC as an institution held-
"ln my view. the IEBC. and the Chief Executive Officer are two different entities or offices, though related The IEBC constitutes of the Commissioners. while the Chief Executive Officer is an employee of the IEBC. Thus in my view, one cannot sue IEBC and then directly obtain orders against the Chief Executive Officer as suggested in the submissions. If one wanted to get orders in this petition directly against the Chief Executive Officer. then that office should have been joined as a party. On that account also the petition will not succeed."
v. Sections 34, 35, 36 and 37 of the Elections Act. CAP 7 provides the procedure for allocation and re-allocation of Special Seats. The CEO of the Respondent herein has no mandate under the said provisions to undertake the process of allocation or re- allocation of a Special Seat as that responsibility is vested on the Commissioners who are the Members of the Respondent.
vi. The duty of the Respondent to allocate and reallocate party lists is not perfunctory as it would have to comply with the Elections Act and attendant Regulations which requires verification of their qualification and ascertainment of whether the next nominee in the party list is still a member of the nominating party as well other statutory requirements laid out under the Elections Act.
vii. The Application before Court is incompetent and as such the orders sought are premature and unwarranted.
Petitioner’s Submissions
12. On 29th October 2024, the Petitioner through its Counsel Barry Bruce Sande Advocates filed submissions and underscored the issue for argument as: whether the Respondent should facilitate the gazettement of the Petitioner as a nominated Member of Parliament.
13. Referring to Section 10(7) of the Independent Electoral and Boundaries Commission Act, Counsel submitted that the Respondent’s CEO duties include facilitating, coordinating, and ensuring the execution of the Commission's mandate and any duties that may be assigned by law or the Commission. Therefore, Counsel submitted that while the CEO is inept of conducting the Respondent’s functions in its absence, the CEO can conduct administrative duties, like gazettement which in his view falls within the constraints of Section 11A(b) of the Act.
14. Reliance was placed in Maina & 12 others v The Independent Electoral and Boundaries Commission & 2 others; Mutai & 2 others [2024] KEHC 208 (KLR) where it was held that:
“The foregoing provisions are authoritative as to the composition of the Commission and the basic role of the CEO is to execute the decisions of the Commission and to perform the duties assigned to him/her by the law and Commission. I take note that the applicant relied on the High Court decision in Eldoret Election Petition Appeal No. E001 of 2023. In the said decision, this court presided by Justice Anthony Charo Mrima gave orders directing the CEO, Marjan Hussein Marjan or any other officer occupying the said office to cause to be published in the Kenya Gazette a Corrigendum to Gazette Notice 10712 of 2022. The Court in its ratio decidendi adopted the approach that the action of gazettement by the CEO is a simple administrative one; placing a notice communicating the decision of the court. That such an action does not call for the commission to sit, deliberate and come up with a decision. I couldn’t agree more.
In my considered view, true, the CEO is neither an independent entity from the Commission nor an alternative to the Commissioner. It then means that the CEO is incapable of assuming the role of the commission in instances when the Commission is not properly constituted or not constituted at all. However, the Constitution of Kenya 2010 did not envisage the present scenario where strictly speaking, there are no members of the Commission. The Constitution and the IEBC Act are however clear on the steps to be taken to replace commissioners in the event of resignation, retirement and removal.”
15. Additionally, Counsel submitted that since the CEO is an employee of the Respondent, there was no need to join him as a party in this suit. Counsel stated that this is made manifest from Section 11A(b) of the IEBC Act, wherein the Respondent’s CEO is tasked to perform the day to day administrative functions of the Commission.
16. Counsel moving on submitted that party lists are provided for under Article 97(1) (c) of the Constitution. Counsel noted that Section 37(1) of the Elections Act provides that if a representative from a political party list dies, withdraws from the party list, changes parties, resigns or is expelled from his or her party during the term of the representative, the seat of the representative shall be allocated to the next candidate of the same gender on the respective political party list, in this case the Petitioner.
17. In light of this provision as read with Sections 34, 35, 35A, 36, and 37 of the Election Act, Counsel asserted that the Petitioner stood elected when Hon. Mbadi vacated the Parliamentary seat being the Party List had already been validly issued in 2022.
18. Considering this, Counsel asserted that the question of quorum was irrelevant as at the time of the elections, the Respondent had the requisite quorum and accepted it in the party list in accordance with the Elections Act. Reliance was placed in Peter Muchiri Mwangi v Independent Electoral and Boundaries Commission [2018] eKLR where it was held that:
“It is the responsibility of the parties to choose their preferred candidates and rank them in order of priority of preference. The seats won by each party are filled by candidates in the order they appear on the parties respective list, hence in closed list system. The power over who gets the reserved seat resides with the parties themselves. The same list serves as a reservoir of candidates in any of the eventualities, hence it follows that IEBC in a closed list system has no power to rearrange the list or pick out from the list any other candidate apart from the parties preferred candidate listed at the top of the list if only one candidate is required.”
19. Counsel thus submitted that the Petitioner had a legitimate expectation that the Respondent would be gazette and swear him in as soon as the seat fell vacant following Hon. Mbadi’s appointment as a Cabinet Secretary. To buttress this point reliance was placed in Maina & 12 others v The Independent Electoral and Boundaries Commission & 2 others (supra) where the Court highlighted the elements of legitimate expectation as follows:
“i. That there must be a representation which is “clear, unambiguous and devoid of relevant qualification,”
ii. That the expectation must be reasonable in the sense that a reasonable person would act upon it,
iii. That the expectation must have been induced by the decision-maker and
iv. That it must have been lawful for the decision-maker to make such representation. If such an expectation exists it will be incumbent on the administrator to respect it.”
20. In light of the foregoing, Counsel argued that the Respondent’s refusal to gazette the Petitioner citing lack of quorum violated his constitutional rights. Nonetheless Counsel argued that as per Section 85 of the Evidence Act and Section 69 of the Interpretation and General Provisions Act, gazettement is not mandatory and thus should not be a hindrance to the realization of the Petitioner’s constitutional rights. Equally, reliance was placed in Nderitu Gachagua vs Dr. Thuo Mathenge & 2 others Civil Appeal No. 14 of 2013 where it was held that:
“The Gazette is an official document of the Government of Kenya in which official matters including official notices by the government are published. Any notice published in the Gazette is deemed as notice to the general public and one is barred from pleading ignorance of the same.”
21. On the same note, Counsel contended that gazettement is an administrative task which the Respondent had failed to perform thus violating his right to a fair administrative action. Reliance was placed in Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others (Petition 1 of 2015) [2016] KESC 2 (KLR) where the Supreme Court held that:
“It is clear from the foregoing provisions that the allocation of nomination- seats by the IEBC is a time-bound process, that starts with the proportional determination of the number of seats due to each political party. On that basis, IEBC then ‘designates’, or ‘draws from’ the allocated list the number of nominees required to join the County Assembly. To ‘designate’ or ‘draw from’ entails the act of selecting from the list provided by the political party. It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC, as an integral part of the election process.”
22. Like dependence was placed in Lady Justice Okwany in Nyamira Constitutional Petition No. E005 of 2023; Michelle Kemuma Omwoyo vs Independent Electoral & Boundaries Commission & another [2023] KEHC 24521 (KLR).
Respondent’s Submissions
23. The Respondent’s Counsel, Ruth Makuthu filed submissions dated 12th November 2024 and supplementary submissions dated 10th February 2025.
24. Counsel on the onset stressed that the Respondent’s CEO is not the Respondent. Counsel submitted that while Section 7 (e)(iii) of the IEBC Act states that the CEO is responsible for facilitating, coordinating and ensuring execution of Commission’s mandate, this is pegged on the availability of the Commissioners to make policy and strategic direction which then the CEO can proceed to facilitate, co- ordinate and execute. Counsel stressed that the function of re-allocation of special seats as provided under Section 37 of the Elections Act is a preserve of the Commissioners and not the CEO as alluded to by the Petitioner.
25. Further being that the CEO is not a member of the Commission as per Section 5 of the Act, Counsel stated that he cannot perform the functions of the Respondent. Moreover, Counsel stressed that the Petitioner’s case cannot be reduced to an administration action. Counsel likewise stated that Article 88 (4) (d) of the Constitution specifically assigns the role of regulating the process by which parties nominate candidates for elections to the Respondent.
26. Correspondingly, Counsel relying in Sections 37 and 85A of the Elections Act as read with Rules 7 and 8 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 contended that re-allocation of party lists is essentially an election and a preserve of the Commission.
27. Reliance was placed in National Gender and Equality Commission v Independent Electoral and Boundaries Commission & another [2013] KEHC 6328 (KLR) where it was held that:
“What is the responsibility of the IEBC in the creation of party lists by political parties under Article 90?
The election contemplated in Article 90 is one for party list seats which means that the responsibility of the IEBC to conduct and supervise elections under Article 90 is limited to the allocation of party list seats set out in Article 90(1) from the lists submitted to it by the political parties by ensuring that such lists comply with the Constitution, Elections Act, 2011 and the regulations made thereunder and other relevant statutes. Membership of the party lists is determined by the political parties in accordance with their own internal procedures and mechanisms.”
28. Counsel also pointed out that these provisions provide mechanisms for settlement of electoral disputes. Counsel underscored that this Court lacks jurisdiction to entertain this suit as the issues raised herein ought to have been ventilated and determined before an Election Court.
29. Reliance was placed in Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 other [2016] KESC 2 (KLR) where it was held that:
“The Constitution provided for two modes of election. The first was election in the conventional sense, of universal suffrage: the second was election by way of nomination, through the party list. Any contest to an election, whatever its manifestation, was to be by way of election petition.”
30. Like dependence was placed in Nduta v Speaker, County Assembly of Kirinyaga &c 2 others [2024] KEHC 15886 (KLR).
31. As at the time, Counsel submitted that vide Gazette Notice Vol. CXXV - No.35 dated 14th February 2023, the President had declared a vacancy in the positions of Chairperson and six other members of the Commission thus was not existent. Additionally, it was noted that the Petitioner is seeking Orders against the CEO who is not a party in the present proceedings and thus the Orders sought are unenforceable making the Petition defective. On this basis, Counsel argued that the Petition is devoid of merit and thus an abuse of the Court process and so ought to be dismissed with costs.
32. To buttress this point reliance was placed in HCCHRPET/E003/2024 Ann Wambui Mukuru vs Independent Electoral and Boundaries and 2 Others where it was held that:
“In my view the IEBC, and the Chief Executive Officer are two different entities or offices, though related. The IEBC constitutes of the Commissioners, while the Chief Executive Officer is an employee of the IEBC. Thus, one cannot sue IEBC and then directly obtain Orders against the Chief Executive Officer as suggested in the petition and Petitioner’s submissions. If one wanted to get Orders directly against the Commission Secretary/CEO, then that office should have been enjoined as party. Hence, the Petitioner should not be granted the Orders he is seeking since he has not enjoined the Commission Secretary/ CEO of the Respondent.”
33. In view of the foregoing, Counsel submitted that the Petitioner had not identified any provision in the Constitution or law which confers the Respondent’s CEO, the power to gazette any person to fill a vacant political post without the actual involvement of the Commissioners.
Analysis and Determination
34. It is my considered opinion that the issues that arise for determination are as follows:
i. Whether this Court has jurisdiction to entertain this suit.
ii. Whether the gazettement is compulsory and if the CEO can independently perform the Commission’s mandate.
iii. Whether the Petitioner is entitled to the reliefs sought.
Whether this Court has jurisdiction to entertain this suit.
35. Whenever the jurisdiction of the Court is questioned the Court must inquire into the matter and ascertain if it has jurisdiction or not. The Supreme Court affirmed in the Matter of the Interim Independent Electoral Commission [2011] KESC 1 (KLR) that:
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent.”
36. The jurisdiction of the High Court in constitutional disputes is provided for under Article 165(3) which states as follows:
‘Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(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;
iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
(4) Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
(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; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
37. Notwithstanding the wide-ranging jurisdiction, the High Court operates within a legal context that has other players hence in Benson Ambuti Ambega & 2 Others v Kibos Distillers Limited (2020) eKLR; the Court observed:
“… a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism…”
38. On jurisdiction in electoral disputes, the Court of Appeal in Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] KECA 553 (KLR) had the following to say:
“52. Upfront, we wish to point out that the jurisdiction of the High Court in Electoral Disputes Resolution is a special jurisdiction conferred by the Constitution and the Elections Act. This special jurisdiction should not be confused with the High Court's unlimited jurisdiction in civil and criminal matters or the High Court's supervisory jurisdiction over inferior bodies and tribunals. This position was affirmed by the Supreme Court at Paragraphs 82 of its judgment in Lemanken Aramat -v- Harun Meitamei Lempaka & 2 others [2014] eKLR where it was stated:
"[82] The original jurisdiction of the High Court in criminal and civil matters, by Article 165(3) (a) of the Constitution, is unlimited. In addition, the High Court has a special jurisdiction in electoral matters, conferred by the Constitution, and given effect under the Elections Act: this is the jurisdiction to determine any question as to whether a person has been validly elected as a Member of Parliament (Article 105(1) (a) of the Constitution). This jurisdiction is activated upon a declaration by the authorized electoral body (IEBC) that a particular person has been returned as Member of Parliament, when there is a challenge to that electoral declaration (Article 87(2) of the Constitution).
[84] The very basis of the High Court’s jurisdiction in respect of Parliamentary-election disputes, lies in Articles 87(2) and 105(1)(a) of the Constitution…”
53. Further, in Frederick Otieno Outa -v- Jared Odoyo Okello & 4 others [2014] eKLR, the Supreme Court expressed:
“[63] Similar to Article 87(1) is Article 105 (3), which confers upon Parliament a mandate to enact separate and special legislation giving it full effect. As noted above, Article 105 (1) makes the High Court the first-instance forum for resolving electoral disputes, where any challenge to the election of a Member of Parliament should be directed. Article 105(2) prescribes the timeline within which such a dispute must be resolved. By Article 105(3) the Constitution, Parliament was mandated to design and enact a special legislative mechanism, to enable the realization of two objects: the judicial duty of the High Court to hear and determine causes of action in electoral contests, in the first instance, and, where required, provide an avenue of appeal to the Court of Appeal; and secondly, the specification of jurisdiction and timelines.”
54. Bearing in mind the foregoing, whether or not a candidate has been nominated is a question of fact. Whether the nomination itself and the process leading to the nomination is valid is a question of law. Equally whether a court has jurisdiction in any matter is a matter of law…”
39. The Superior Court went further to observe that:
“55. We bear in mind that an election court is a court with special jurisdiction and availability of alternative remedies and procedures under general law should not be a bar to remedies and procedures under the electoral law. Where the Constitution provides for two or three methods of resolving disputes none can exclude the other. In such cases, the decision of the forum that has constitutional finality in resolving the dispute and cause of action prevails. In electoral disputes, it is the electoral law that applies and any electoral dispute must be resolved by way of an election petition and not through judicial review process.”
40. The Respondent is a creation of Article 88 of the Constitution with functions set out in sub-Article (4) which are also reiterated in Section 4 of the IEBC Act. The functions are:
(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--
(a) the continuous registration of citizens as voters;
(b) the regular revision of the voters’ roll;
(c) the delimitation of constituencies and wards;
(d) the regulation of the process by which parties nominate candidates for elections;
(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;
(f) the registration of candidates for election;
(g) voter education;
(h) the facilitation of the observation, monitoring and evaluation of elections;
(i) the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
(j) the development of a code of conduct for candidates and parties contesting elections; and
(k) the monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.
41. This office of the Respondent’s Secretary/Chief Executive Officer is established under Section 10 of the IEBC Act. The functions of the office are contained in Section 10(7) (e), namely:
The secretary shall be responsible for—
(i) executing decisions of the Commission;
(ii) assignment of duties and supervision of all employees of the Commission;
(iii) facilitating, co-ordinating and ensuring execution or Commission's mandate;
(iv) ensuring staff compliance with public ethics and values; and
(v) the performance or such other duties as may be assigned by the law and Commission.
42. Article 90 of the Constitution provides for the Party lists as follows:
Allocation of party list seats
(1) El
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1. The Petition dated 9th September 2024 is supported by the Petitioner’s affidavit in support of even date and a supplementary affidavit dated 25th September 2024.
2. The Petition is founded on the Petitioner’s claim that the Respondent has failed to gazette him as the next priority candidate following a vacancy in the special Parliamentary seat left by the Hon. John Mbadi Ngongo who was appointed the Cabinet Secretary, to the National Treasury and Economic Planning on 24th July 2024.
3. The Petitioner contends that the Respondent’s failure to gazette his name for the said special Parliamentary seat is in contravention of the Constitution.
4. As a result, the Petitioner seeks the following reliefs:
i. A declaration do issue to the effect that the Gazettement of duly elected and/or nominated Members of Parliament such as the Petitioner herein, pursuant to an election and/or nomination is an administrative action, to be undertaken by the Independent Electoral and Boundaries Commission Secretary/Chief Executive Officer, Mr. Marjan Hussein Marjan or any such person occupying the said position at the time, and is independent on the composition or quorum of the Independent Electoral and Boundaries Commission.
ii. A declaration do issue that the failure and inaction by the Independent Electoral and Boundaries Commission to Gazette the name of Harold Kimuge Kipchumba as a nominated Member of Parliament is contrary to Articles 2, 3, 12, 21, 22, 27, 28, 47, 54, 56, 90, 97, 101, and 258 of the Constitution as read with Sections 4, and 5 of Fair Administrative Action Act.
iii. An order of mandamus do issue compelling the Independent Electoral and Boundaries Commission, through the Secretary/Chief Executive Officer Mr. Marjan Hussein Marjan or any person occupying the said position, to gazette the name of Harold Kimuge Kipchumba, as a nominated Member of Parliament.
iv. An order awarding costs of the Petition to the Petitioners.
Petitioner’s Case
5. The Petitioner states that he is a person living with a physical disability. He deponed that he ranks fourth person in order of priority in the Orange Democratic Movement Party (ODM), Party List that was submitted for the purposes of election (nominations) of Members of the National Assembly. This list was published on the Respondent’s official website on 28th July 2022.
6. The Petitioner asserts that the three persons ahead of him in the list were all nominated to Parliament as members of the National Assembly. Afterwards, Hon. John Mbadi Ngongo who was second in the list was appointed as the Cabinet Secretary, to the National Treasury and Economic Planning on 24th July 2024. As a result, Hon. Mbadi vacated his special seat in Parliament. This vacancy was further acknowledged by the National Assembly in its letter to the Petitioner dated 19th September 2024. This position had also been communicated to the Respondent by the Speaker of National Assembly vide a letter dated 14th August 2024.
7. The Petitioner contends that owing to this vacancy and being the next person in the Party list, he stands elected to Parliament in line with Article 97(1) (c) of the Constitution. In view of this, vide a letter dated 1st August 2024 addressed to the 1st Respondent’s Chief Executive Officer, Marjan Hussein Marjan, the Petitioner requested that his name be gazetted as the duly elected member of Parliament.
8. He contends that the Respondent declined to gazette his name owing to its lack of quorum as at the time, the Commission did not have a Chairman and Commissioners.
9. The Petitioner decries the Respondent’s CEO decision, as his failure to gazette him, creates an unnecessary constitutional crisis which makes Parliament to be unconstitutionally constituted. He maintains that the situation can be remedied by gazetting his name as the next person in the order of priority.
10. For this reason, the Petitioner argues that the Respondent’s failure to Gazette him is in contravention of his rights under Article 27, 38 and 47 of the Constitution and Section 37(1) of the Elections Act.
Respondent’s Case
11. The Respondent in response filed grounds of opposition dated 24th September 2024 on the basis that:
i. The Notice of Motion has blatantly disregarded the legal and constitutional framework for conduct of elections thereby rendering the Notice of Motion dated 9th May, 2024 incompetent and devoid of merit for the following reasons:
a. Article 90 of the Constitution as read with Article 177 (1) (b) of the Constitution provides for election by Party Lists submitted by Political Parties.
b. Article 90((2) of the Constitution gives the Members of the Respondent the constitutional mandate to conduct elections through Party Lists from Political Parties.
ii. The Respondent is not quorate due to lack of Chairperson and Commissioners and in its current state may not be legally mandated to act on the Notice of Vacancy issued by the Speaker of the National Assembly in view of Article 88, 90 and 250(1) of the Constitution as read with Sections 4 and 5 of the Independent Electoral and Boundaries Commission Act.
iii. The Secretariat of the Respondent cannot process the conducted elections or allocate or re-allocate Party Lists for the following reasons:
a. The functions of the Respondent's Secretariat under the provisions of Section 11 and 11A of the CAP 7C do not include conduct of elections or the allocation or re-allocation of special seats.
b. The functions of the Secretary to the Respondent (who is its Chief Executive Officer (CEO)), under Section 10(7) of the IEBC Act does not include conduct of elections or the allocation or re-allocation of Special Seats as affirmed by the High Court in Constitutional Petition No. E003 of 2024, Ann Wambui vs IEBC and 2 Others where the Court held that-
"ln my view, the petitioner has not pointed or identified any provision in the Constitution or the written law, which confers on the Chief Executive Officer the power to gazette any person to fill a vacant political post without the actual involvement of the Commissioners. On that account, this petition will fail."
iv. The Respondent and its CEO are two different offices/entities though related. A perusal of the Application is that the Petitioner is seeking Orders against the Commission Secretary/CEO who is not a party in this matter and as such the Application ought to be struck out. The Court in Ann Wambui (supra) while answering the question whether the Petitioner would succeed to get Orders against the CEO having sued IEBC as an institution held-
"ln my view. the IEBC. and the Chief Executive Officer are two different entities or offices, though related The IEBC constitutes of the Commissioners. while the Chief Executive Officer is an employee of the IEBC. Thus in my view, one cannot sue IEBC and then directly obtain orders against the Chief Executive Officer as suggested in the submissions. If one wanted to get orders in this petition directly against the Chief Executive Officer. then that office should have been joined as a party. On that account also the petition will not succeed."
v. Sections 34, 35, 36 and 37 of the Elections Act. CAP 7 provides the procedure for allocation and re-allocation of Special Seats. The CEO of the Respondent herein has no mandate under the said provisions to undertake the process of allocation or re- allocation of a Special Seat as that responsibility is vested on the Commissioners who are the Members of the Respondent.
vi. The duty of the Respondent to allocate and reallocate party lists is not perfunctory as it would have to comply with the Elections Act and attendant Regulations which requires verification of their qualification and ascertainment of whether the next nominee in the party list is still a member of the nominating party as well other statutory requirements laid out under the Elections Act.
vii. The Application before Court is incompetent and as such the orders sought are premature and unwarranted.
Petitioner’s Submissions
12. On 29th October 2024, the Petitioner through its Counsel Barry Bruce Sande Advocates filed submissions and underscored the issue for argument as: whether the Respondent should facilitate the gazettement of the Petitioner as a nominated Member of Parliament.
13. Referring to Section 10(7) of the Independent Electoral and Boundaries Commission Act, Counsel submitted that the Respondent’s CEO duties include facilitating, coordinating, and ensuring the execution of the Commission's mandate and any duties that may be assigned by law or the Commission. Therefore, Counsel submitted that while the CEO is inept of conducting the Respondent’s functions in its absence, the CEO can conduct administrative duties, like gazettement which in his view falls within the constraints of Section 11A(b) of the Act.
14. Reliance was placed in Maina & 12 others v The Independent Electoral and Boundaries Commission & 2 others; Mutai & 2 others [2024] KEHC 208 (KLR) where it was held that:
“The foregoing provisions are authoritative as to the composition of the Commission and the basic role of the CEO is to execute the decisions of the Commission and to perform the duties assigned to him/her by the law and Commission. I take note that the applicant relied on the High Court decision in Eldoret Election Petition Appeal No. E001 of 2023. In the said decision, this court presided by Justice Anthony Charo Mrima gave orders directing the CEO, Marjan Hussein Marjan or any other officer occupying the said office to cause to be published in the Kenya Gazette a Corrigendum to Gazette Notice 10712 of 2022. The Court in its ratio decidendi adopted the approach that the action of gazettement by the CEO is a simple administrative one; placing a notice communicating the decision of the court. That such an action does not call for the commission to sit, deliberate and come up with a decision. I couldn’t agree more.
In my considered view, true, the CEO is neither an independent entity from the Commission nor an alternative to the Commissioner. It then means that the CEO is incapable of assuming the role of the commission in instances when the Commission is not properly constituted or not constituted at all. However, the Constitution of Kenya 2010 did not envisage the present scenario where strictly speaking, there are no members of the Commission. The Constitution and the IEBC Act are however clear on the steps to be taken to replace commissioners in the event of resignation, retirement and removal.”
15. Additionally, Counsel submitted that since the CEO is an employee of the Respondent, there was no need to join him as a party in this suit. Counsel stated that this is made manifest from Section 11A(b) of the IEBC Act, wherein the Respondent’s CEO is tasked to perform the day to day administrative functions of the Commission.
16. Counsel moving on submitted that party lists are provided for under Article 97(1) (c) of the Constitution. Counsel noted that Section 37(1) of the Elections Act provides that if a representative from a political party list dies, withdraws from the party list, changes parties, resigns or is expelled from his or her party during the term of the representative, the seat of the representative shall be allocated to the next candidate of the same gender on the respective political party list, in this case the Petitioner.
17. In light of this provision as read with Sections 34, 35, 35A, 36, and 37 of the Election Act, Counsel asserted that the Petitioner stood elected when Hon. Mbadi vacated the Parliamentary seat being the Party List had already been validly issued in 2022.
18. Considering this, Counsel asserted that the question of quorum was irrelevant as at the time of the elections, the Respondent had the requisite quorum and accepted it in the party list in accordance with the Elections Act. Reliance was placed in Peter Muchiri Mwangi v Independent Electoral and Boundaries Commission [2018] eKLR where it was held that:
“It is the responsibility of the parties to choose their preferred candidates and rank them in order of priority of preference. The seats won by each party are filled by candidates in the order they appear on the parties respective list, hence in closed list system. The power over who gets the reserved seat resides with the parties themselves. The same list serves as a reservoir of candidates in any of the eventualities, hence it follows that IEBC in a closed list system has no power to rearrange the list or pick out from the list any other candidate apart from the parties preferred candidate listed at the top of the list if only one candidate is required.”
19. Counsel thus submitted that the Petitioner had a legitimate expectation that the Respondent would be gazette and swear him in as soon as the seat fell vacant following Hon. Mbadi’s appointment as a Cabinet Secretary. To buttress this point reliance was placed in Maina & 12 others v The Independent Electoral and Boundaries Commission & 2 others (supra) where the Court highlighted the elements of legitimate expectation as follows:
“i. That there must be a representation which is “clear, unambiguous and devoid of relevant qualification,”
ii. That the expectation must be reasonable in the sense that a reasonable person would act upon it,
iii. That the expectation must have been induced by the decision-maker and
iv. That it must have been lawful for the decision-maker to make such representation. If such an expectation exists it will be incumbent on the administrator to respect it.”
20. In light of the foregoing, Counsel argued that the Respondent’s refusal to gazette the Petitioner citing lack of quorum violated his constitutional rights. Nonetheless Counsel argued that as per Section 85 of the Evidence Act and Section 69 of the Interpretation and General Provisions Act, gazettement is not mandatory and thus should not be a hindrance to the realization of the Petitioner’s constitutional rights. Equally, reliance was placed in Nderitu Gachagua vs Dr. Thuo Mathenge & 2 others Civil Appeal No. 14 of 2013 where it was held that:
“The Gazette is an official document of the Government of Kenya in which official matters including official notices by the government are published. Any notice published in the Gazette is deemed as notice to the general public and one is barred from pleading ignorance of the same.”
21. On the same note, Counsel contended that gazettement is an administrative task which the Respondent had failed to perform thus violating his right to a fair administrative action. Reliance was placed in Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 others (Petition 1 of 2015) [2016] KESC 2 (KLR) where the Supreme Court held that:
“It is clear from the foregoing provisions that the allocation of nomination- seats by the IEBC is a time-bound process, that starts with the proportional determination of the number of seats due to each political party. On that basis, IEBC then ‘designates’, or ‘draws from’ the allocated list the number of nominees required to join the County Assembly. To ‘designate’ or ‘draw from’ entails the act of selecting from the list provided by the political party. It is plain to us that the Constitution and the electoral law envisage the entire process of nomination for the special seats, including the act of gazettement of the nominees’ names by the IEBC, as an integral part of the election process.”
22. Like dependence was placed in Lady Justice Okwany in Nyamira Constitutional Petition No. E005 of 2023; Michelle Kemuma Omwoyo vs Independent Electoral & Boundaries Commission & another [2023] KEHC 24521 (KLR).
Respondent’s Submissions
23. The Respondent’s Counsel, Ruth Makuthu filed submissions dated 12th November 2024 and supplementary submissions dated 10th February 2025.
24. Counsel on the onset stressed that the Respondent’s CEO is not the Respondent. Counsel submitted that while Section 7 (e)(iii) of the IEBC Act states that the CEO is responsible for facilitating, coordinating and ensuring execution of Commission’s mandate, this is pegged on the availability of the Commissioners to make policy and strategic direction which then the CEO can proceed to facilitate, co- ordinate and execute. Counsel stressed that the function of re-allocation of special seats as provided under Section 37 of the Elections Act is a preserve of the Commissioners and not the CEO as alluded to by the Petitioner.
25. Further being that the CEO is not a member of the Commission as per Section 5 of the Act, Counsel stated that he cannot perform the functions of the Respondent. Moreover, Counsel stressed that the Petitioner’s case cannot be reduced to an administration action. Counsel likewise stated that Article 88 (4) (d) of the Constitution specifically assigns the role of regulating the process by which parties nominate candidates for elections to the Respondent.
26. Correspondingly, Counsel relying in Sections 37 and 85A of the Elections Act as read with Rules 7 and 8 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 contended that re-allocation of party lists is essentially an election and a preserve of the Commission.
27. Reliance was placed in National Gender and Equality Commission v Independent Electoral and Boundaries Commission & another [2013] KEHC 6328 (KLR) where it was held that:
“What is the responsibility of the IEBC in the creation of party lists by political parties under Article 90?
The election contemplated in Article 90 is one for party list seats which means that the responsibility of the IEBC to conduct and supervise elections under Article 90 is limited to the allocation of party list seats set out in Article 90(1) from the lists submitted to it by the political parties by ensuring that such lists comply with the Constitution, Elections Act, 2011 and the regulations made thereunder and other relevant statutes. Membership of the party lists is determined by the political parties in accordance with their own internal procedures and mechanisms.”
28. Counsel also pointed out that these provisions provide mechanisms for settlement of electoral disputes. Counsel underscored that this Court lacks jurisdiction to entertain this suit as the issues raised herein ought to have been ventilated and determined before an Election Court.
29. Reliance was placed in Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 other [2016] KESC 2 (KLR) where it was held that:
“The Constitution provided for two modes of election. The first was election in the conventional sense, of universal suffrage: the second was election by way of nomination, through the party list. Any contest to an election, whatever its manifestation, was to be by way of election petition.”
30. Like dependence was placed in Nduta v Speaker, County Assembly of Kirinyaga &c 2 others [2024] KEHC 15886 (KLR).
31. As at the time, Counsel submitted that vide Gazette Notice Vol. CXXV - No.35 dated 14th February 2023, the President had declared a vacancy in the positions of Chairperson and six other members of the Commission thus was not existent. Additionally, it was noted that the Petitioner is seeking Orders against the CEO who is not a party in the present proceedings and thus the Orders sought are unenforceable making the Petition defective. On this basis, Counsel argued that the Petition is devoid of merit and thus an abuse of the Court process and so ought to be dismissed with costs.
32. To buttress this point reliance was placed in HCCHRPET/E003/2024 Ann Wambui Mukuru vs Independent Electoral and Boundaries and 2 Others where it was held that:
“In my view the IEBC, and the Chief Executive Officer are two different entities or offices, though related. The IEBC constitutes of the Commissioners, while the Chief Executive Officer is an employee of the IEBC. Thus, one cannot sue IEBC and then directly obtain Orders against the Chief Executive Officer as suggested in the petition and Petitioner’s submissions. If one wanted to get Orders directly against the Commission Secretary/CEO, then that office should have been enjoined as party. Hence, the Petitioner should not be granted the Orders he is seeking since he has not enjoined the Commission Secretary/ CEO of the Respondent.”
33. In view of the foregoing, Counsel submitted that the Petitioner had not identified any provision in the Constitution or law which confers the Respondent’s CEO, the power to gazette any person to fill a vacant political post without the actual involvement of the Commissioners.
Analysis and Determination
34. It is my considered opinion that the issues that arise for determination are as follows:
i. Whether this Court has jurisdiction to entertain this suit.
ii. Whether the gazettement is compulsory and if the CEO can independently perform the Commission’s mandate.
iii. Whether the Petitioner is entitled to the reliefs sought.
Whether this Court has jurisdiction to entertain this suit.
35. Whenever the jurisdiction of the Court is questioned the Court must inquire into the matter and ascertain if it has jurisdiction or not. The Supreme Court affirmed in the Matter of the Interim Independent Electoral Commission [2011] KESC 1 (KLR) that:
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent.”
36. The jurisdiction of the High Court in constitutional disputes is provided for under Article 165(3) which states as follows:
‘Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(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;
iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
(4) Any matter certified by the court as raising a substantial question of law under clause (3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
(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; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.
(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
37. Notwithstanding the wide-ranging jurisdiction, the High Court operates within a legal context that has other players hence in Benson Ambuti Ambega & 2 Others v Kibos Distillers Limited (2020) eKLR; the Court observed:
“… a Court, though it may be vested with the requisite and sweeping jurisdiction to hear and determine certain issues as may be presented before it for adjudication, should nonetheless exercise restraint or refrain itself from making such determination, if there would be other appropriate legislatively mandated institutions and mechanism…”
38. On jurisdiction in electoral disputes, the Court of Appeal in Kennedy Moki v Rachel Kaki Nyamai & 2 others [2018] KECA 553 (KLR) had the following to say:
“52. Upfront, we wish to point out that the jurisdiction of the High Court in Electoral Disputes Resolution is a special jurisdiction conferred by the Constitution and the Elections Act. This special jurisdiction should not be confused with the High Court's unlimited jurisdiction in civil and criminal matters or the High Court's supervisory jurisdiction over inferior bodies and tribunals. This position was affirmed by the Supreme Court at Paragraphs 82 of its judgment in Lemanken Aramat -v- Harun Meitamei Lempaka & 2 others [2014] eKLR where it was stated:
"[82] The original jurisdiction of the High Court in criminal and civil matters, by Article 165(3) (a) of the Constitution, is unlimited. In addition, the High Court has a special jurisdiction in electoral matters, conferred by the Constitution, and given effect under the Elections Act: this is the jurisdiction to determine any question as to whether a person has been validly elected as a Member of Parliament (Article 105(1) (a) of the Constitution). This jurisdiction is activated upon a declaration by the authorized electoral body (IEBC) that a particular person has been returned as Member of Parliament, when there is a challenge to that electoral declaration (Article 87(2) of the Constitution).
[84] The very basis of the High Court’s jurisdiction in respect of Parliamentary-election disputes, lies in Articles 87(2) and 105(1)(a) of the Constitution…”
53. Further, in Frederick Otieno Outa -v- Jared Odoyo Okello & 4 others [2014] eKLR, the Supreme Court expressed:
“[63] Similar to Article 87(1) is Article 105 (3), which confers upon Parliament a mandate to enact separate and special legislation giving it full effect. As noted above, Article 105 (1) makes the High Court the first-instance forum for resolving electoral disputes, where any challenge to the election of a Member of Parliament should be directed. Article 105(2) prescribes the timeline within which such a dispute must be resolved. By Article 105(3) the Constitution, Parliament was mandated to design and enact a special legislative mechanism, to enable the realization of two objects: the judicial duty of the High Court to hear and determine causes of action in electoral contests, in the first instance, and, where required, provide an avenue of appeal to the Court of Appeal; and secondly, the specification of jurisdiction and timelines.”
54. Bearing in mind the foregoing, whether or not a candidate has been nominated is a question of fact. Whether the nomination itself and the process leading to the nomination is valid is a question of law. Equally whether a court has jurisdiction in any matter is a matter of law…”
39. The Superior Court went further to observe that:
“55. We bear in mind that an election court is a court with special jurisdiction and availability of alternative remedies and procedures under general law should not be a bar to remedies and procedures under the electoral law. Where the Constitution provides for two or three methods of resolving disputes none can exclude the other. In such cases, the decision of the forum that has constitutional finality in resolving the dispute and cause of action prevails. In electoral disputes, it is the electoral law that applies and any electoral dispute must be resolved by way of an election petition and not through judicial review process.”
40. The Respondent is a creation of Article 88 of the Constitution with functions set out in sub-Article (4) which are also reiterated in Section 4 of the IEBC Act. The functions are:
(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for--
(a) the continuous registration of citizens as voters;
(b) the regular revision of the voters’ roll;
(c) the delimitation of constituencies and wards;
(d) the regulation of the process by which parties nominate candidates for elections;
(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;
(f) the registration of candidates for election;
(g) voter education;
(h) the facilitation of the observation, monitoring and evaluation of elections;
(i) the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
(j) the development of a code of conduct for candidates and parties contesting elections; and
(k) the monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.
41. This office of the Respondent’s Secretary/Chief Executive Officer is established under Section 10 of the IEBC Act. The functions of the office are contained in Section 10(7) (e), namely:
The secretary shall be responsible for—
(i) executing decisions of the Commission;
(ii) assignment of duties and supervision of all employees of the Commission;
(iii) facilitating, co-ordinating and ensuring execution or Commission's mandate;
(iv) ensuring staff compliance with public ethics and values; and
(v) the performance or such other duties as may be assigned by the law and Commission.
42. Article 90 of the Constitution provides for the Party lists as follows:
Allocation of party list seats
(1) El
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