BACKGROUND
1. The undisputed facts of this case are that Hon. Motoa Verah Onkundi Redempta the ex- parte applicant herein filed a Party list dispute No. E035 of 2022 against Jubilee party and Clare Moraa in the Political parties Tribunal challenging the nomination of Hon Claire Moraa Obino as a gender top up member of the Kisii County assembly and her subsequent gazettement of by IEBC. The complaint was allowed on 8.8.22 and the respondent was ordered to file a fresh party list within 48 hours including her name as number 3 in the said Nomination list .
2. .The orders were not complied with and she filed Kisii chief Magistrate court Election Petition No. E005 of 2022 against IEBC , Jubilee party , and the clerk county Assembly of Kisii. the petitioner therein by the Jubilee Party Hon Claire Moraa Obino on the same grounds which were raised before the Tribunal. In the said petition she sought for a declaration that the nomination of the Claire herein was irregular and unfair, null and void and that she was the one who was validly nominated by the Jubilee Party under gender top up under Article 27 (8) of the Constitution. She equally sought an order declaring that the gazettement of the Claire Moraa as member of county Assembly of Kisii invalid and cancellation of the same . The Election court allowed the petition and nullified the gazettement of the said Claire Moraa .
3. The said Claire Moraa was dissatisfied with the judgement of the election court and preferred an appeal to the Kisii High Court being Election Petition Appeal No.E002 of 2023 . The decision of the election court was upheld by the High court vide it’s Judgement dated 30.6.2022.
4. She was also aggrieved by the judgement of the High Court at Kisii, preferred a second appeal to the Court of Appeal Kisumu being Election Petition Appeal No.E015 of 2023 whose judgement was delivered on 24th October, 2023 striking out the appeal for want of jurisdiction.
5. Hon Motoa Redempta has now moved this court by way Notice of motion dated 22.11.23 seeking :
a. The Honourable Court be pleased to issue an order of mandamus compelling the 1st and 2nd respondents to swear the applicant Hon. Motoa Verah Onkundi Redempta as the duly nominated MCA for Kisii County Assembly by the Jubilee party.
b. The Honourable Court be pleased to issue any other orders it may deem fit and convenient taking into account all the exceptional circumstances herein.
c. Costs of this application to abide by final outcome of this motion.
6. The application is based on the grounds that the 1st and 2nd respondents have a duty to gazette the ex-parte applicant as the duly elected MCA under the gender top up list for Jubilee party . That there is a valid decree dated 16.1.222 in favour of the ex-parte applicant which was upheld by the High Court and a subsequent appeal to the Court of Appeal was dismissed as per copies of the said judgments (“MVOR 1’’) , that it is in the interest of justice that the Ex-parte applicant be sworn in to promote the rule of law and due process .
7. The application is also supported by the annexed affidavit of the ex -parte applicant who deponed that despite holding a valid decree and making requests to the 1st and 2nd respondents to gazette her the have failed , refused and or neglected to gazette her and the 3rd and 4th respondents have also failed to swear her in . She annexed copies of her communication with respondents (MVOR 2). She further told this court that she has suffered loss , injustice and prejudice and she stands to suffer irreparable loss unless this application is heard and determined . Also that the respondents are duty bound to gazette and swear her.
8. The ex parte applicant also filed a statement of facts dated 22.`11.23 and cited the Public duty of the respondents to act as per the orders sought herein. Also that the respondent owes the ex -parte applicant a duty to execute the decree , that there is no other remedy available in this case save for mandamus . Further that the ex -parte applicant has a duty to fair administrative action under Article 47 of the constitution and she had a legitimate expectation the 1st and 2nd respondent would gazette her nomination and the 3rd and 4th would swear her .
9. The 4th respondent vide his affidavit dated 8.10.24 deponed that though he knows that the Ex-parte applicant was declared to be the nominee of Jubilee party they are yet to receive a certificate from IEBC and that IEBC is not properly constituted and that is the reason why the nomination of the ex-parte applicant has not been gazette. The 4th respondent urged this court to dismiss the petition for being pre-mature as the requirement for gazettement and issuance of certificate have not been complied with has not been complied with . The 1st ,2nd and 3rd respondents did not file any reply despite being served .
10. I have carefully considered the Motion the reply by the 4th respondent and the submissions by the ex parte applicant and the forth respondent and the issues for determination are as follows :
a. Whether the ex parte applicant has a legitimate expectation to be sworn in .
b. Whether this court has jurisdiction to direct 1st , 2nd and 4th respondents to issue the certificate of nomination a, gazette and swear the exparte applicant as a nominated member of the County Assembly of Kisii despite the fact that IEBC is not properly Constituted .
c. whether the application meets the threshold for granting of mandamus .
DETERMINATION
11. On whether the ex- parte applicant has a legitimate expectation to be sworn in , she argued that she had a legitimate expectation to be sworn in and start working. This was not disputed . The Supreme Court case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR explained the principle of legitimate expectation as follows:
“[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation.
[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case, South African Veterinary Council v Szymanski 2003(4) SA 42 (SCA) at [paragraph 28]: the Court held as follows:
“The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following
:i. The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.
(ii)The expectation must be reasonable: Administrator, Transvaal v Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).ii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.
iii. The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”
12. The exparte applicant is a decree holder and the matter went through appeal and the decree was upheld and thus the orders in the decree are clear , fair , lawful and reasonable and thus the exparte applicant had a legitimate expectation that the 1st, 2nd and 4th respondents will execute the orders in the decree and the people of Kisii also have a similar expectation to be represented and to have a fully-fledged county assembly under the Constitution.
13. Whether this court has jurisdiction to direct 1st and 2nd respondents to issue the certificate of nomination a, gazette and swear the exparte applicant as a nominated member of the County Assembly of Kisii despite the fact that IEBC is not properly Constituted . The 4th respondent urged this court to dismiss the instant application for the reason the IEBC is not properly constituted and thus the orders sought cannot issue. Article 23 (3) (f)of the Constitution of Kenya, 2010, vests this court with jurisdiction to issue judicial review orders Article 259 of the Constitution Enjoins court to interpret the constitution in a progressive manner . In the case of County Government of Kisii & 2 others v Independent Electoral and Boundaries Commission; Monda (Interested Party) [2024] KEHC 8477 (KLR) this court held that ;
‘’Article 23 (3) of the Constitution of Kenya, 2010 grants this Court the powers to craft such appropriate reliefs to ensure the ends of justice are met. It provides that: In any proceedings brought under Article 22, a court may grant appropriate relief, including –
a. A declaration of rights ;
b. An injunction;
c. A conservatory order; .A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
e.An order for compensation; and
f. An order of judicial review.
…………..Also that 39. ‘’By parity of reasoning, I also note that there is no mandatory provision to the effect of the gazettement of a nominated deputy governor and, as I have noted, none has been cited by the parties before this Court. Just like in the case of the Members of the County Assembly, the gazettement, as a matter of practice, only serves to inform the public of the successful aspirants/nominees thereby marking the close an election process. In the instant case, neither the Respondent nor the Interested Party have contested or raised a doubt that Mr. Elijah Obebo would have been gazetted should the Independent Electoral and Boundaries Commission have been properly constituted.’’
14. In the said Kisii County case, this court also cited the case Wachira James Maina & 12 Others vs Celestine Chepchirchir Mutai and Others; Eldoret High Court Election Petition Appeal No. E002 of 2023, with approval . In that case the Court, while dealing with the issue of gazettement by IEBC held t as follows:“. The provisions of Article 259 require the Constitution to be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law, human rights fundamental freedoms and that permits the development of law and good governance.In the present circumstances, IEBC has not been properly constituted. Any further delays would then mean that the Applicants’ rights will be put on hold until such a time when the commission will be constituted………….. To this end, the court cannot then sit back and watch the applicant suffer a glaring prejudice for reasons that a properly constituted commission doesn’t exist.Why Gazette? Is it mandatory legal requirement? While I appreciate the importance of Gazettement in the election process, I insist on realizing the Applicants’ constitutional rights who equally have a legitimate expectation to be sworn in as Members of the County Assembly having exhausted the available avenues in pursuing their cause.…From the foregoing cited provisions, it is safe to conclude that a gazette notice is evidence, at face value, of the existence of a law or a notice that has been duly formulated. It then implies that a Gazette notice is an official communication or a formal expression of the existence of the notice or law.…The 4th Respondent’s reasons as put forth by the applicants that it is unable to comply with the court’s orders for lack of a quorate commission, is therefore untenable and an attempt to take advantage of the lacuna created by the absence of the Commissioners, an issue that is out of control of the Applicant.My reading and understanding of the above provisions is that once members of the County Assembly are nominated and/or elected, it is the IEBC’s role to publish their names in the Kenya Gazette to inform the public of the prospective office holders. It is noteworthy that there is no mandatory provision to the effect that an MCA can only be sworn in after Gazettement. Gazettement only serves as an avenue to formally inform the public of the successful candidates and as such closing the election process. In the exercise of discretion, the rule of law dictates that like cases are treated alike. ‘’
15. Similar views were held by Hon lady Justice Okwany J in Nyamira Constitutional Petition No. E005 of 2023; Michelle Kemuma Omwoyo vs Independent Electoral & Boundaries Commission & another (Petition E005 of 2023) [2023] KEHC 24521 (KLR) (31 October 2023) (Ruling)
16.In the case of EWA and 2 Others vs Director of Immigration and Registration of Persons & another (2018) eKLR the court defined “appropriate relief” as a relief that is required to protect and enforce the Constitution thus:“… a declaration of rights, an interdict, mandamus, or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced”
17. The same position was held in the South African case of Fose vs Minister of Safety and Security (CCT 14/96) 1997, ZACC 6, 1997 thus:“[Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights………In our context an appropriate remedy must mean an effective remedy”
18. The hands of this court are therefore not tied by the lacuna created absence of IEBC commissioners as it has powers under Article 23 to issue orders for appropriate reliefs to avoid violation of rights of the citizens of Kenya. The last general elections were held in the year 2022 and we are now in mid March 2025 and next elections are due in the year 2027 , withholding the of gazettement of the ex-parte applicant as a nominated member of the county assembly has cause her anxiety and prejudice and denies the people of Kisii the right the right to equality and non -discrimination envisaged under Article 27 (8) of the Constitution of Kenya .
19. The lack of IEBC commissioners cannot be a reason not to swear the ex-parte applicant as the process of recruiting g the commissioners has taken too long and in any event the gazettement is not compulsory but an administrative action by the Chief executive officer of IEBC to pass information to the general public on the election or nomination of a member to the assembly or office as was held by this court in the case of County Government of Kisii & 2 others v Independent Electoral and Boundaries Commission; Monda (Interested Party) [2024] KEHC 8477 (KLR) (supra ) .
20. On whether the exparte applicant has met the threshold for granting the writ of mandamus was laid down in the case of v Port of London Authority ex-parte Kynock Ltd {1918} 1KB 176 where it was held that
“a writ of mandamus is in essence a prerogative writ to command a tribunal, authority, person and Government to do something which it has omitted or refused to do in pursuant or execution or intended execution as stipulated in the Act.” Mandamus is a writ issued by the Court directed to a person , a tribunal or a Government agency compelling it to perform it’s duty which it has refused or neglected to do . It is clear that the 1st , 2nd and 4th respondents are government agencies and the 1st and 2nd respondents have a duty to issue a certificate of nomination and gazette the name of Redempta as a nominated member of Kisii county and assembly and the 4th respondent has a duty to swear her . This has not been done . This court has the jurisdiction to direct the respondents to perform their duties under Article 23 (f) of the Constitution of Kenya .
CONCLUSION
21. The application is merited and I allow the same on the following terms :
a. Order Of Mandamus do and is hereby issued compelling the Independent Electoral and Boundaries Commission, through the Secretary/chief Executive Officer or any person occupying the said position, to issue Hon. Motoa Verah Onkundi Redempta with a certificate of nomination with effect from 8.8.22 and to gazette her as the duly nominated MCA for Kisii County Assembly by the Jubilee party (Gender top up under Article 27(8) of the constitution ) within ten (10) days from the date of this Judgment.
b. Upon compliance with the said order the 4th respondents shall immediately swear in the ex parte applicant into office as a nominated member of the Kisii County Assembly .
c. Incase the 1st and 2nd respondents do not comply with order (a) above the 4th respondent to proceed to swear the ex parte applicant within 3 days from the date of default .
c. Each party shall bear its own costs since the issue of lack of Commissioners of IEBC was not deliberate on the part of the respondents .
T.A ODERA
JUDGE
17.3.25
DELIVERED VIRTUALLY IN THE PRESENCE OF :
Mr Ondieki for the ex parte applicant
Miss Nyamwaya holding brief for Mr Onserio Ondimu for the 4th respondent .
CA: Oigo .