MARY
WAMBUI MUNENE V PETER GICHUKI KING'ARA & 2 OTHERS
PETITION
NO. 7 OF 2013
THE
SUPREME COURT OF KENYA AT NAIROBI
CJ
W MUTUNGA, DCJ K RAWAL, P K TUNOI, M K IBRAHIM, J B OJWANG, S C WANJALA & N
NJOKI SCJJ
MAY
5, 2014
REPORTED
BY NJERI GITHANG’A AND CHARLES MUTUA
Brief Facts
The Appellant (Mary Wambui Munene) and the 1st
Respondent, (Peter Gichuki King'ara) together with seven others, contested for
the seat of Member of the National Assembly for Othaya Constituency, in the
General Elections held on 4th March, 2013.
After the counting and tallying of the results, the
Appellant was declared the duly elected member of the National Assembly for
Othaya Constituency. The 1st Respondent emerged as the 1st runner-up. Aggrieved
by this declaration of the Appellant as the winner, the 1st Respondent filed a
petition challenging that outcome which was dismissed with costs, and confirmed
the Appellant as the duly elected member of National Assembly for Othaya
Constituency.
Aggrieved by the foregoing orders of the Election
Court, the 1st Respondent appealed to the Court of Appeal which ordered for a
fresh election and declared the election was full of election irregularities.
Aggrieved by that decision, the Appellant
filed an appeal before Supreme Court seeking to set aside the whole Judgment of
the Court of Appeal nullifying her election as the Othaya Member of Parliament.
Meanwhile, the Supreme Court had in (Hassan
Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR)
determined the issue as to when the time-limit envisaged under Article 87(2) of
the Constitution is set in motion, and had declared Section 76(1)(a) of the
Elections Act ultra vires the Constitution.
The appellant sought to have the proceedings before
the Court of Appeal and High Court declared a nullity on the basis of the
Joho’s decision.
Issues
Whether the Election Petition proceedings were
a nullity ab initio, having been premised on a petition filed out of time at
the High Court.
ii. Whether the declaration by the Supreme
Court in the Joho case that section 76(1)(a) of the Elections Act, 2011 was
invalid had retrospective effect, therefore invalidating the proceedings filed
before the date of the decision.
Constitutional Law- statutes-constitutionality
of a Statute-where an Act of parliament is found to be in conflict with the
Constitution-effect of the conflict-when does that conflict deem to start once
defined- whether the declaration by the Supreme Court in the Joho case that
section 76(1)(a) of the Elections Act, 2011 was invalid had retrospective
effect, therefore invalidating the proceedings filed before the date of the
decision-Constitution of Kenya 2010, article 4
Electoral Law-election petitions-expeditious hearing
and disposal of election petitions-the Supreme Court having declared Section
76(1) (a) of the Elections Act inconsistent with Article 87(2) of the
Constitution–where article 87(2) made the provision requiring that election
petitions for elections other than Presidential elections, be filed within 28
days after the declaration of the election results by the Commission- whether
proceedings were a nullity ab initio, having been premised on a Petition filed
out of time at the High Court- Constitution of Kenya 2010, articles 87 (1);
National Assembly and Presidential Elections Act, section 22; Elections Act (No
24 of 2011) Section 85A
Held
Whether proceedings in the Court of Appeal were a
nullity ab initio was an issue that went to the jurisdiction of that Court to
entertain that matter.
The question of jurisdiction was a pure question of
law, it had to be determined from the start, and where the Court found it had
no jurisdiction, it should put down its tools.
The electoral history of Kenya was replete
with cases of delay in finalizing matters, thereby denying the voters the
opportunity to have their chosen representatives in the organs of democratic
governance.
It was clear that the sovereign power belongs to the
people, and was exercised either directly or through their democratically
elected representatives in the State Organs, which included Parliament and the
Legislative Assemblies in County Governments. The voters’ rights in that regard
were quite clear, from the terms of the Constitution (article 1).
Article 87(1) of the Constitution directed
Parliament to establish mechanisms for the timely settlement of electoral
disputes; hence the Elections Act.
Further, article 87(2) made the provision requiring
that election petitions for elections other than presidential elections, be
filed within 28 days after the declaration of the election results by the
Commission.
The Parliament had enacted a contradictory
provision, in the form of section 76(1)(a) of the Elections Act. In considering
the effect of that provision, the Court declared section 76(1)(a) of the
Elections Act inconsistent with article 87(2) of the Constitution. [Hassan Ali
Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR]
The Supreme Court has to give guidance on
fundamental principles of the Constitution; and pursuant to that role, the
Court in the Joho case adverted to the bearing of time in the scheme of
constitutional processes.
While the principle of timely disposal of
election petitions affirmed by the Court of Appeal must be steadfastly
protected by any Court hearing election disputes, or applications arising from
those disputes, the interests of justice and rule of law must be constantly
held paramount.
The Supreme Court had been keen to ensure
predictability, certainty, uniformity and stability in the application of the
law. That inclination was asserted in the case of Jasbir Singh Rai and 3 others
v The Estate of Tarlochan Singh Rai and 4 Others, Petition No. 4 of 2012 (the
Rai case)
Decisions of the Supreme Court were only
arrived at after conscientious and due consideration. That approach was the
basis upon which the court evaluated the case before the court.
As noted, Section 76(1)(a) of the Elections Act was
declared a nullity-a declaration that was clear as well as unqualified. Indeed,
the Court of Appeal appreciated the sanctity of that declaration and dismissed
the appeals before it in accordance with comparative judicial practice around
the world.
Under the Constitution and even otherwise, the
Supreme Court is naturally looked upon by the country as the custodian of law
and the Constitution, and if the Court were to review its own previous
decisions merely because another view is possible, the litigant-public may be
encouraged to think that it is always worthwhile taking a chance with the
highest Court in the land. Bengal Immunity Co. Ltd v Bihar, (1955) 2 S.C.R 603,
(‘55’) A. SC 661
The Supreme Court had been silent in johos
case on the effect of declaration of invalidity of a statute and therefore
unequivocal about the invalidity of any action emanating from section 76(1)(a)
of the Elections Act, in appropriate cases, might exercise its jurisdiction to
give its constitutional interpretations retrospective or prospective effect.
That was derived from the broad mandate accorded by article 1, 10, 163, 159 and
259 of the Constitution, and Section 3 of the Supreme Court Act, 2011.
If a statute is void from its very birth then
anything done under it, whether closed, completed, or developing, will be
wholly illegal and relief in one shape or another has to be given to the person
affected by such an unconstitutional law. Keshavan Madhava Menon v. The State
of Bombay [1951] INSC.
While the Court pronounced itself on the issue
of invalidity of section 76(1)(a) of the Elections Act, in line with the
Constitution, the Court was not precluded from considering the application of
the principles of retro activity or pro activity on a case-by-case basis. As
such, in the instant matter, the issue of invalidity of Section 76(1)(a) of the
Elections Act was bound to the issue of time. Time, as a principle, was
comprehensively addressed through the attribute of accuracy, and emphasized by
article 87(1) of the Constitution, as well as other provisions of the law.
Time, in principle and applicability, was a vital element in the electoral
process set by the Constitution.
From a review of the principles as regards the
settlement of electoral disputes, court was convinced that for the benefit of
certainty and consistency, the declaration of invalidity must apply from the
date of commencement of the Elections Act.
Several constitutional processes had been
concluded, and others ensued as a result of the directions of the Courts while
handling electoral disputes following the 2013 General Elections. In either of
those scenarios, and as a matter of finality of Court processes, parties could
not reopen concluded causes of action.
The apprehension that a declaration of nullity and
its retrospective effect could trigger a frenzy to re-open concluded or
determined election cases, could hence not arise or be contemplated.
Appeal allowed
- See more at:
http://www.the-star.co.ke/news/article-166883/kenya-law-report-supreme-court-ruling-wambuis-election-petition#sthash.V20Lk8nD.dpuf
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