Kibeh v Waibara & another

that position and article 99 of the Constitution that required public officers to resign from office before vying for public elective posts – Constitution of Kenya, 2010 article 99(2); Elections Act (cap 7) section 43. Brief facts The matter was an appeal against the judgment of the High Court in HC Milimani Constitutional Petition No. 210 of 2020 Formerly Kiambu HC Petition No. 8B of 2019 delivered on October 7, 2020. The 1st respondent had challenged the election of the appellant as the Member of the National Assembly for Gatundu North Constituency. The appellant’s election had been challenged earlier before the High Court and the Court of Appeal. Her election was initially successfully challenged in the High Court by the 1st respondent in Election Petition No. 1 of 2017 wherein it was held: that the election of the appellant contravened constitutional and statutory provisions governing elections; that the appellant was not validly declared as the Member of Parliament for Gatundu North Constituency; and that the declaration issued by the Independent Election and Boundaries Commission (2nd respondent) was invalid, null and void. The judgment of the High Court was overturned by the instant Court in Election Petition Appeal No. 1 of 2017, and the appellant was declared validly elected as the member of the National Assembly for Gatundu North Constituency. The 1st respondent then led a constitutional petition seeking a declaration that the appellant was holding oce as the member of the National Assembly for Gatundu North Constituency in violation of article 103(1)(g) as read with article 99(2) (d) of the Constitution of Kenya, 2010 (the Constitution) because she was not qualied to contest for election as a member of the National Assembly on the date of her election. That petition was initially dismissed by the High Court but upon appeal to the Court of Appeal, and in a judgment delivered on August 14, 2019, the Court of Appeal allowed the appeal and ordered that the petition be remitted back to the Constitutional and Human Rights Division of the High Court for a new trial. The new trial culminated in the orders the subject of the instant appeal. The High Court having re-heard the matter allowed the petition holding inter alia that the appellant was a nominated Member of the County Assembly of Kiambu on June 27, 2017 when her nomination to run for the Gatundu North National Assembly seat was gazetted by the 2nd respondent (IEBC). It therefore followed that at the time of her election on August 8, 2017 she was ineligible for election as a Member of Parliament as she was disqualied by article 99(2) (a) & (d) of the Constitution from contesting. Her participation in the election and her subsequent election was therefore unconstitutional, null and void. The High Court thus declared the seat of the Member of the National Assembly for Gatundu North Constituency had become vacant by operation of article 103(1)(g) of the Constitution. Aggrieved, the appellant led the instant appeal challenging the High Court decision on grounds of; constitutional and statutory interpretation of article 99 of the Constitution and section 43 of the Elections Act; determination of unpleaded issues; and disregard of the doctrine of stare decisis. Issues i. What was the denition of a public ocer? ii. Whether candidates intending to vie for any political seat established by the Constitution had to be qualied to do so at the time of nomination. iii. Whether the law prohibited a member of county assembly from being nominated by a political party to vie for a parliamentary seat on account that a member of county assembly was a state ocer. iv. Whether nomination of a member of county assembly to contest for a parliamentary seat was an election within the meaning of article 99 of the Constitution. v. Whether there was inconsistency between section 43 of the Elections Act that allowed a member of a county assembly to contest a political seat while still holding that position and article 99 of the Constitution that required public oers to resign from oce before vying for public elective posts. Relevant provisions of the Law Constitution of Kenya, 2010 https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 2

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Article - 99. Qualications and disqualications for election as member of Parliament (2) A person is disqualified from being elected a member of Parliament if the person-(a) is a State officer or other public officer, other than a member of Parliament; Article 103 - Vacation of Oce of Member Of Parliament (1) The office of a member of Parliament becomes vacant— (g) if the member becomes disqualified for election to Parliament under Article 99 (2) (d) to (h). Elections Act , No. 24 of 2011 Section 43 - Participation in elections by public ocers (5) A public officer who intends to contest an election under this Act shall resign from public office at least six months before the date of election. (5A) A public officer who intends to contest in a by-election under this Act shall resign from public office within seven days of the declaration of a vacancy. (6) This section shall not apply to(a) the President; (b) deleted by Act No. 36 of 2016, s. 16; (c) the Deputy President; (d) a member of Parliament; (e) a county governor; (f) a deputy county governor; (g) a member of a county assembly. Held 1. The 1st appellant tendered her application for nomination on March 3, 2017 and was gazetted by the Independent Electoral and Boundaries Commission on June 27, 2017 as the duly nominated candidate to contest in the 2017 general elections as the Jubilee party candidate for MP for Gatundu North Constituency. At the time of her nomination and gazettement, the appellant was a member of the Kiambu County Assembly, and she was elected as Member of Parliament for Gatundu North on August 8, 2017 when the general election took place. Article 99 of the Constitution, dealt with qualication and disqualication for election as member of Parliament. The 1st appellant, being a member of a county assembly, was the holder of a state oce and therefore a state Ocer. That was ascertainable from article 260 of the Constitution which dened a state ocer as a person holding a State oce and a member of a County Assembly as a State Oce. 2. The proper meaning of public ocer, for purposes of the electoral law, was that embodied in article 260 of the Constitution as read together with section 2 of the Elections Act. The dierent denitions in other statutory provisions, such as those enumerated earlier on, ought not to take precedence over the constitutional provision. The proper meaning of public ocer currently was: 1. the person concerned was a State ocer; or 2. any other person who held public oce – an oce within the national government, county government, public service; 3. a person holding such an oce, being sustained in terms of remuneration and benets from the public exchequer. 3. Article 99(2)(a) of the Constitution provided that a person was disqualied from being elected as a member of parliament if the person was a state ocer other than a member of parliament. Article 99(2) (d) provided that a member of the county assembly fell within those state ocers who were disqualied from being elected as a Member of Parliament. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 3

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4. 5. 6. 7. 8. 9. 10. A reading of article 99(2) of the Constitution showed that the disqualication related to election as a member. They did not relate to nomination. The conditions provided for disqualication had to be present at the time of election as a member of parliament. That was when the issue of whether the candidate was eligible for election came into play. Article 99 of the Constitution dealt with qualications and disqualications for elections as Member of Parliament, which was a stage after nomination. The High Court misdirected itself in holding that nomination to contest membership of Parliament was an election within the meaning of article 99 of the Constitution. That article did not state that for one to vie for any political seat established by the Constitution, he or she had to be qualied to do so at the time of nomination. The High Court had conated election, which was the subject of disqualication in article 99 of the Constitution, with nomination for election, which was the subject of section 22(1) of the Elections Act. The law did not prohibit a member of county assembly from being nominated to vie for a parliamentary seat by a political party, as nomination to contest as a member of parliament was not an election within the meaning of article 99 of the Constitution. Nomination for election and elections were actually two distinct stages in the electoral process that could not be conated. Nomination had to rst take place and, thereafter, those who were nominated contest the election. Section 43(5) of the Elections Act required a public ocer who intended to contest an election under the Act to resign from public oce at least six (6) months before the date of that election. Section 43(6) of the Elections Act exempted particular state ocers from the requirement in section 43(5). Under section 43(6)(g) of the Elections Act, a member of a county assembly was one of the public ocers exempted from that section. Unlike other public ocers who were expected to resign from their public oce at least 6 months before the date of election, the ocers identied in section 43(6) of the Elections Act, including a member of a county assembly, did not have to resign before the date of elections, and were not disqualied from contesting for a political position by virtue of those positions. There was no inconsistency between section 43 of the Elections Act and article 99 of the Constitution. The section did not allow a member of a county assembly to contest a political seat while still holding that position, but the member of county assembly did not have to resign because they automatically ceased to hold the position by the election date. If anything, the requirement for public servants to resign from the public oce was in tandem with the disqualication of public ocers provided under article 99(2) of the Constitution and gave public ocers a specic timeline within which to resign from their oces should they wish to contest an election. That timeline was pegged on the election date and, for a member of county assembly, the disqualication would not be applicable on the election date, as their term in the county assembly would have ended. Article 137 of the Constitution dealt with nomination for election as President, and subsection 2(b) of that article, specically disqualied a public ocer from being nominated. That was distinct from article 99(2)(d) of the Constitution which disqualied a public ocer from being elected. Similarly, article 137(3) of the Constitution excluded the president, deputy president and member of parliament from the disqualication in article 137(2)(b), just as article 99(2) (a) of the Constitution excluded a member of Parliament from the disqualication in that article. Article 193 of the Constitution provided for qualication for election as member of county assembly and expressly provided for disqualication of state ocers other than a member of county assembly. Although in articles 99 and 193 of the Constitution the disqualication related to election and the disqualication and the exemptions provided in article 137 of the Constitution related to nomination, the articles were all consistent with section 43 of the Elections Act to the extent that a state ocer was not qualied to contest at the time of elections. The rationale for excluding public ocers mentioned in section 43(6) of the Elections Act from the obligation to resign 6 months before the elections was understandable. They all held positions of a https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 4

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political nature by virtue of their elections or nominations. Those included the president, deputy president, member of parliament, governor, member of county assembly, who were elected for a 5year term, that ordinarily terminated at the next general elections. If those State ocers were to resign 6 months before the general elections, their term would be reduced to four and a half years. There would also be a vacuum as the constituencies they represented would be left without a representative for 6 months as no by-elections could be held within that period. That was further reinforced by article 103(1)(f) of the Constitution which provided that the oce of a member of parliament became vacant at the end of the term of the relevant House. 11. The members of parliament did not need to resign before the elections, as their positions would automatically cease at the end of the 5-year term to facilitate the elections and a new term in the House. Under article 194(1)(f) of the Constitution, a member of a county assembly would serve until the term ended automatically at the end of the term of the assembly when new elections were held and the term of a new assembly started. 12. In any litigation, the dispute between the parties was circumscribed by the parties through their pleadings and statement of agreed issues, if any. The issue of eligibility of a member of county assembly, governor or deputy governor, to contest the presidential election, or the president or deputy president to contest a county assembly election without resigning as head of state, was not before the High Court and it was not open to the High Court to make pronouncements in that regard. The only issue before the court was qualication and disqualication of a member of the county assembly for election as a member of parliament. That was what the High Court ought to have restricted itself to. 13. At the time of the elections on August 9, 2017, the appellant was not a member of the county assembly as her term had ended with the term of the county assembly. The disqualication in article 99(2)(a) and (d) of the Constitution that dealt with the disqualication of state ocers and members of county assembly for election as members of parliament, would otherwise have been applicable to the appellant if she was still a member of county assembly, was no longer applicable to her. Appeal allowed. Orders Costs awarded to the appellant and the 2nd respondent. Citations Cases Kenya 1. Galaxy Paints Company Ltd v Falcon Guards Ltd Civil Appeal 219 of 1998; [2000] KECA 215 (KLR) - (Explained) 2. In the Matter of Kenya National Commission on Human Rights Reference 1 of 2014; [2014] KESC 33 (KLR); [2014] 2 KLR 356 - (Mentioned) 3. In the Matter of the Interim Independent Electoral Commission (Applicant) Constitutional Application 2 of 2011; [2011] KESC 1 (KLR); [2011] 2 KLR 32 - (Mentioned) 4. Karani & another v Attorney General & 4 others Constitutional Petition 321 & 331 of 2017 & Petition 331 of 2007 (Consolidated); [2017] KEHC 2184 (KLR) - (Explained) 5. Mwau v Independent Electoral and Boundaries Commission & 2 others Presidential Election Petition 2 & 4 of 2017 (Consolidated); [2017] KESC 53 (KLR) - (Explained) 6. Mwawasi v Attorney General & 2 others Civil Appeal 280 of 2013; [2014] KECA 561 (KLR) (Mentioned) 7. Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] 3 KLR 637 (Explained) 8. Outa v Okello & 3 others Petition 6 of 2014; [2017] KESC 25 (KLR) - (Explained) 9. Waibara v Kibeh & another Petition 210 of 2020; [2020] KEHC 2834 (KLR) - (Mentioned) https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 5

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Statutes Kenya 1. Constitution of Kenya articles 99(1)(2)(a)(d); 103(1)(f)(g); 137(1)(2); 193; 194(1)(f); 260(Interpreted) 2. Elections Act (cap 7) sections 2, 22(1); 43(5)(6)- (Interpreted) Advocates Prof Ojienda Senior Counsel, and Mr Onderi for the appellant Mr Awele and Mr Owuocha for the 1st respondent Mr Nyachiro for the 2nd respondent JUDGMENT 1. This is an appeal arising from a judgment of the High Court (Korir, J) in a petition in which Hon Clement Kung’u Waibara (Hon Waibara) challenged the election of Hon Annie Wanjiku Kibeh (Hon Kibeh), as the Member of the National Assembly for Gatundu North Constituency. Hon Kibeh is now the appellant before us and Hon Waibara the 1st respondent and the Independent Electoral and Boundaries Commission (IEBC) the 2nd respondent. 2. Since her election on August 8, 2017August 8, 2017, Hon Kibeh has had a checkered history in her quest to retain her seat as Member of the National Assembly for Gatundu North Constituency. Her election was initially successfully challenged in the High Court (Ngugi, J), by Hon Waibara in Election Petition No 1 of 2017 wherein Hon Waibara obtained orders: that the election of Hon Kibeh contravened constitutional and statutory provisions governing elections; that Hon Kibeh was not validly declared as the MP for Gatundu North constituency; and that the declaration issued by the IEBC was invalid, null and void. Hon Waibara’s success was short lived as the judgement of the High Court was overturned by this Court (Nambuye, Gatembu & Murgor, JJA) in Election Petition Appeal No 1 of 2017, and Hon Kibeh declared validly elected as the member of the National Assembly for Gatundu North Constituency. 3. Hon Waibara then led a constitutional petition seeking a declaration that Hon Kibeh was holding oce as member of the National Assembly for Gatundu North Constituency in violation of article 103(1) (g) as read with article 99(2)(d) of the Constitution because she was not qualied to contest for election as a member of the National Assembly on the date of her election. That petition was initially dismissed by the High Court (Achode, J), but Hon Kibeh appealed to this court, and in a judgement delivered on August 14, 2019, the court (Asike Makhandia, F Sichale & J Mohammed, JJA) allowed the appeal and ordered that the petition be remitted back to the Constitutional and Human Rights Division of the High Court for a new trial. The new trial culminated in the orders that are now the subject of this appeal. 4. In his Constitutional petition in the High Court, Hon Waibara contended that the election of Hon Kibeh was in violation of article 103(1) (g) as read with article 99(2)(d) of the Constitution, because she was still serving as a member of the County Assembly, Kiambu County, and therefore was not eligible for nomination to contest the election as a Member of the National Assembly for Gatundu North Constituency. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 6

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5. Following the order for retrial, the learned Judge having re-heard the matter allowed the petition holdinginter alia that: “ The 1st respondent (Hon Kibeh) was a nominated Member of the County Assembly of Kiambu on June 27, 2017 when her nomination to run for the Gatundu North National Assembly seat was gazetted by the 2nd respondent (IEBC). It therefore follows that at the time of her election on August 8, 2017 she was ineligible for election as Member of Parliament as she was disqualied by article 99(2)(a) & (d) of the Constitution from contesting. Her participation in the election and her subsequent election was therefore unconstitutional, null and void.” 6. The learned Judge proceeded to declare that the seat of the Member of the National Assembly for Gatundu North constituency currently held by Hon Kibeh had become vacant by operation of article 103 (1) (g) of the Constitution. 7. Hon Kibeh, being aggrieved, has challenged the judgment of the High Court on 15 grounds which she condensed in her submissions into 3 issues. The issues are: constitutional and statutory interpretation of article 99 of the Constitution and section 43 of the Elections Act; whether the learned judge erred in determining unpleaded issues; and whether the learned judge disregarded the doctrine of stare decisis. 8. Hon Kibeh submitted that, although the learned Judge fully appreciated the constitutional interpretation doctrines, his decision was awed and contra the cannons of interpretation. She faulted the learned judge for interpreting article 99(2) of the Constitution, which reads: “a person is disqualied from being elected as a member of Parliament if the person is….” by reading in the word “nomination” to interpret the section as stating, “a person is disqualied from being nominated as a member of parliament if the person is….” She contended that the transposition of the word nomination for election was a misconstruction of a clear constitutional text. 9. Hon. Kibeh submitted that article 99(1) of the Constitution in fact distinguishes between nomination and election, as the two words are used in the section in dierent contexts; and that a candidate’s election is pegged on her being nominated, and therefore the two terms cannot mean the same thing. Hon Kibeh cited Bishop Donald Kisaka Mwawasi vs Attorney General & 2 others [2014] eKLR (Bishop Mawasi decision), on the distinction between contesting an election and holding an elective oce. 10. In addition, Hon. Kibeh referred to article 137(1) & (2) of the Constitution, arguing that the section was clear on nomination and that, if the intention of the framers of the Constitution in article 99(2) was, that a person be disqualied from being nominated as a member of the national assembly, the intention would have been expressly provided for. 11. As regards section 43(6) of the Elections Act, it was submitted that the judge’s decision has rendered valueless the purposes and rich history that led to the enactment of that section. Hon Kibeh referred to decisions adopting two opposing interpretations of section 43(6) of the Elections Act. One interpretation is that the requirement for resignation is reasonable and therefore constitutional, and the other interpretation is that, the section was unconstitutional for being unjustiable, irrational, unreasonable, oppressive, and discriminatory, and undue limitation of public servants’ rights. 12. Hon Kibeh cited Stephen Wachira Karani & Anor vs Attorney General & 4 others [2017] eKLR in which Mativo, J held that article 99(2) (d) prohibited the concurrent holding of the oce of Member of Parliament (MP) and Member of County Assembly (MCA), and ruled that a nomination was not an election for the purpose of article 99(2) (d) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 7

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13. The judgment of Korir, J was faulted for equating nomination to election, and equating being elected to contesting an election, thereby misdirecting himself and departing from the binding precedent of the Bishop Mawasi decision. In addition, the learned Judge’s holding that section 43(6) of the Elections Act was inconsistent with the Constitution in so far as it seeks to override the express provision of article 99, 137 and 193 of the Constitution, broke ranks with the holding of other High Court Judges who had previously held that the provision was constitutional and that the distinction between elected State Ocers and other (appointed/non-elected) State/public ocers, was well meaning. The court was urged to arm the decision of Mativo, J. as it represents the proper interpretation of the Constitution and Statute 14. On unpleaded issues, Hon Kibeh submitted that the parties to a dispute determine the terrain of their contest as demarcated in their pleadings; that in striking down section 43(6) of the Elections Act, the learned Judge determined a non-pleaded issue erroneously and made sweeping pronouncements that transcended the parties in the case. These were: that an MCA cannot contest a presidential election before quitting membership of the County Assembly; that Governors or their deputies cannot contest a presidential election without relinquishing their seat; that the President cannot contest in a County Assembly election without resigning as the head of state; that the Deputy President cannot contest in a County Assembly election without resigning as deputy head of state; that an MP cannot contest in a County Assembly election without resigning from Parliament, and that any holder of an elective political oce who wants to move from the county government to the national government, or vice versa, must rst relinquish his or her post before his or her nomination papers are accepted; and that these ndings limit article 38, constitutional rights of the cited State ocers without hearing them. 15. On stare decisis, it was submitted that the learned judge erred in disregarding the binding precedent of this court in the Bishop Mawasi decision and thereby disregarded the doctrine of horizontal stare decisis. It was argued that the learned judge had no justiable reason for departing from this court’s decision and other decisions that have held that section 43(6) of the Elections Act rightly distinguishes State elected ocers from other State/Public Ocers. The court was therefore urged to allow the appeal. 16. IEBC fully supported Hon Kibeh’s appeal and led written submissions. In its view, the issues for determination were twofold: whether the learned judge misinterpreted article 99 of the Constitution and section 43 of the Election Act; and whether the IEBC upheld the tenets of the Constitution in declaring Hon Kibeh eligible to contest for the seat of the Member of Parliament for Gatundu North Constituency. IEBC relied on the Supreme Court Advisory Opinion in the Interim Independent Electoral Commission [2011] eKLR for the proposition that the Constitution favours a purposive approach to interpretation as opposed to formalism, and the Supreme Court Advisory Opinion In the matter of Kenya National Commission on Human Rights [2014] eKLR, for a holistic interpretation as the contextual analysis of a constitutional provision. 17. IEBC submitted that the learned judge’s reasoning on the interpretation of the Constitution was out of context as he failed to distinguish between election and nomination. IEBC referred to the interpretation of election and nomination as dened in section 2 of the Elections Act and noted that the electoral process has several components, nomination being one of them. Even though nomination is inseparable from elections in an election process, the two are dierent activities in the singular electoral process, nomination being the rst activity in the electoral process, and election being the last activity, which results in the election of a candidate. 18. IEBC argued that both the Constitution and the Election Act have expressly distinguished the two terms and pegged a candidate’s election on being nominated. The two terms cannot therefore be https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 8

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construed to mean the same thing and the learned judge failed to appreciate the distinction between contesting an election and holding an elective oce. In addition, the learned judge disregarded the ratio decidendi in the Bishop Mawasi decision in which this court had distinguished between contesting of elective oce and holding elective oce. 19. IEBC submitted that the provisions of section 43(5) of the Elections Act and article 99(2) of the Constitution only prohibit a person from occupying the oce of a member of the County Assembly concurrently with the oce of a Member of Parliament; that Hon Kibeh was a holder of an elective constitutional post and her nomination to run for election as Member of Parliament did not in any way contravene section 43(5) of the Elections Act; and that in allowing Hon Kibeh to run for election as Member of Parliament for Gatundu North Constituency, IEBC applied the exception under section 43(6) of the Elections Act. 20. Like Hon. Kibeh, the IEBC urged the court to arm and follow the judgment of Mativo, J in the Stephen Wachira Karani case urging that the interpretation of Korir, J that section 43(6) of the Elections Act was inconsistent with the Constitution in so far as it seeks to override the express provisions of articles 99,137 and 193 of the Constitution was not only short of context but a mockery to the principal of stare decisis. 21. On whether IEBC upheld the tenets of the Constitution in declaring Hon Kibeh eligible to contest for the seat of MP for Gatundu North Constituency, IEBC maintained that it conducted the elections in accordance with the Constitution and the requisite election law; that the decision of Korir, J was not only contradictory and erroneous but also contrary to the canons of interpretation of article 99 of the Constitution; that the issue of Hon Kibeh to contest as a member of the National Assembly has already been dealt with by courts of competent jurisdiction; and that election and nomination is distinguished in section 99(1). 22. IEBC maintained that it acted in accordance with article 99 in declaring Hon Kibeh eligible to contest for the Gatundu North constituency seat. IEBC further cited the decisions in the Stephen Wachira Karani case and Petition No 210 of 2020 - Kung’u Waibara v Ann Wanjiku Kibeh & anor [2020] eKLR where it was held that the term for members of the County Assembly including County Assembly Speakers, expire on the date of the next general election; that a member of the County Assembly is not disqualied from being nominated to contest in a general election as a Member of Parliament by virtue of article 99(2)(d) of the Constitution; and that the law only prohibits the election of a Member of Parliament if such would result in the person holding the oce of member of County Assembly and Member of Parliament concurrently. 23. IEBC argued that nomination to contest for elections is not an election for purposes of article 99(2) of the Constitution and, therefore, that article does not disqualify a member of County Assembly from being nominated to contest in a general election. IEBC concluded that the decision of the learned Judge, subject of the appeal, was illogical and the interpretation adopted impractical and averse to public interest. 24. The 1st respondent, Hon. Waibara, did not le any written submissions in response to the appeal. During the hearing of the appeal, Prof Ojienda SC and Mr Onderi appeared for Hon Kibeh, while Mr Awele and Mr Owuocha appeared for Hon Waibara, and Mr Nyachiro for IEBC Mr Awele who had initially been acting for Hon. Waibara explained to the court that he had not been able to get instructions from his client on the appeal, and had learnt that Hon Waibara had instructed Mr Owuocha. Learned counsel Mr Owuocha conrmed that he had initially been instructed by Hon Waibara in regard to Civil Application No NAI 390 of 2021 involving the same parties which was also https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 9

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coming up for hearing before us, but had just been instructed to take over this appeal. Mr Awele then sought to be released by the court from appearing for Hon Waibara and his request was granted. 25. Following submissions that were made by Prof Ojienda, SC and Mr Nyachiro highlighting the submissions of Hon Kibeh and the IEBC respectively, although Hon Waibara did not le any submissions in response to the appeal, Mr Owuocha urged the court to arm the decision of the learned Judge. It is noteworthy that in Civil Appeal (Application) No 390 of 2021, Hon Waibara challenged the jurisdiction of this court to entertain the appeal on account of lapse of time, contending that the statutory timelines within which the appeal was to be heard and determined had lapsed. We have today given a ruling in regard to that application. Suce to state that we have found that the statutory timelines relied upon by Hon Waibara do not apply to this appeal. 26. This being a rst appeal, we reiterate and assert our duty as a rst appellate court as stated in Abok James Odera T/A AJ Odera & Associates vs John Patrick Machira T/A Machira & Co Advocates [2013] eKLR: “ …namely to reevaluate, reassess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned Judge are to stand or not and give reasons either way.” 27. With that duty in mind, we have keenly perused the record and considered this appeal in light of the written submissions that were orally highlighted before us, the authorities cited, and the facts that were before the learned Judge, with a view to making our own conclusions, taking into account the appropriate law. 28. It is not disputed that Hon Kibeh tendered her application for nomination on March 3, 2017 and was gazetted by IEBC on June 27, 2017 as the duly nominated candidate to contest in the 2017 general elections as the Jubilee party candidate for MP for Gatundu North Constituency. It is also common ground that as at the time of her nomination and gazettement, Hon. Kibeh was a member of Kiambu County Assembly, and that she was elected as Member of Parliament for Gatundu North on August 8, 2017 when the general election took place. 29. The bone of contention is whether under article 99(2)(a) & (d) of the Constitution, Hon Kibeh being a member of Kiambu County Assembly was disqualied from being nominated as the Jubilee party candidate for MP for Gatundu North Constituency. In addressing this issue, the learned Judge quoted extensively from the judgment in the Stephen Wachira Karani case wherein Mativo J held that the law does not prohibit a member of County Assembly from being nominated by a political party to vie for a parliamentary seat as nomination to contest as a Member of Parliament is not an election within the meaning of article 99. 30. We reproduce herein verbatim what the learned judge stated after considering the judgment of Mativo, J: “ [53] I hold a dierent view on some of the holdings by the learned judge. At paragraph 57 he nds that the Elections Act and section 22(1) provides – “That a person may be nominated as a candidate for an election under the Act only if inter alia, he is qualied to be elected to that oce under the Constitution and the Act. The Constitution at article (99(1)(a) & (d) clearly states that State Ocers and other public ocers and all members of a county assembly are disqualied from election as members of Parliament. Clause (a) is clear that the only persons not disqualied by the rule are members of Parliament. This shows https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 10

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that the drafters of the Constitution intentionally excluded sitting members of county assemblies from contesting parliamentary elections. How then can a member of a county assembly be nominated to run for parliament without violating section 22(1) of the Elections Act.’ [56] I also hold a dierent view on the statement that nomination to contest membership of parliament is not an election within the meaning of article 99 of the Constitution. In my view, for one to vie for any political seat established by the Constitution, he or she must be qualied to do so. In nominating candidates for various seats, political parties need to ensure that the candidates meet the requirements of the Constitution and the Elections Act. At the time of receiving nomination papers from candidates, the IEBC is duty bound to conrm that the candidates are not disqualied from contesting. Clearance by the electoral body to vie for an election is part and parcel of the election process. [60] My understanding of the cited case law, leads me to the conclusion that there is an unbreakable link between nominations and elections, for without nominations there cannot be elections. In determining whether to accept or reject nomination papers of a candidate, the IEBC bases its decision on the qualications and disqualications in the Constitution and any other constitutionally compliant law. [61]In my view the IEBC has no authority to accept the nomination papers of a candidate barred from contesting for membership of any of the two houses of parliament by article 99(2) of the Constitution. Doing so amounts to a violation of clear constitutional provisions.” 31. Thus, the learned judge took a position that was diametrically dierent from that of Mativo, J We have perused the judgment of the learned Judge, the memorandum of appeal and the submissions made before us. We discern the issue that we must address as whether article 99(2) barred Hon Kibeh, who was a member of County Assembly in Kiambu County, from being nominated and gazetted as a Jubilee candidate for Member of the National Assembly representing Gatundu North Constituency, and whether the learned judge arrived at the correct conclusion in holding that her election as member representing Gatundu North Constituency in the National Assembly was in violation of article 99(2) (a) & (d) of the Constitution. 32. In his judgment, the learned judge held that the Constitution at article 99(1) (a) and (d) clearly states that State Ocers and other public ocers or members of a county assembly are disqualied from election as members of Parliament; that under Clause (a), the only persons not disqualied by article 99(1)(a) are members of Parliament; and that under article 99(1)(a) & (d) the drafters of the Constitution intentionally excluded sitting members of county assemblies from contesting parliamentary elections. We believe that the reference to article 99(1)(a) & (d) in the judgment is a typographical error as the context of the judgment shows that the article under consideration was article 99(2)(a) & (d). 33. The learned judge also held that the Elections Act at section 22(1) provides “that a person may be nominated as a candidate for an election under the Act only if inter alia he is qualied to be elected to that oce under the Constitution and the Act”, and that a member of a County Assembly cannot be nominated to run for Parliament without violating section 22(1) of the Elections Act. The learned judge rejected the view that nomination to contest membership of Parliament is not an election within the meaning of article 99, and held that for one to vie for any political seat established by the Constitution he or she must be qualied to do so; that in nominating candidates for various seats, political parties need to ensure that the candidates meet the requirements of the Constitution and the Elections Act; and that IEBC must conrm that the candidates are not disqualied from contesting. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 11

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34. We have considered article 99 of the Constitution, which deals with qualication and disqualication for election as member of Parliament. That article states as follows: “ [99] (1) Unless disqualied under clause (2), a person is eligible for election as a member of Parliament if the person— a. is registered as a voter; b. satises any educational, moral and ethical requirements prescribed by this Constitution or by an Act of Parliament; and c. is nominated by a political party, or is an independent candidate who is supported i. in the case of election to the National Assembly, by at least one thousand registered voters in the constituency; or ii. in the case of election to the Senate, by at least two thousand registered voters in the county. (2) A person is disqualied from being elected a member of Parliament if the person— a. is a State ocer or other public ocer, other than a member of Parliament; b. has, at any time within the ve years immediately preceding the date of election, held oce as a member of the Independent Electoral and Boundaries Commission; c. has not been a citizen of Kenya for at least the ten years immediately preceding the date of election; d. is a member of a county assembly; e. is of unsound mind; f. is an undischarged bankrupt; g. is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election; or h. is found, in accordance with any law, to have misused or abused a State oce or public oce or in any way to have contravened Chapter Six. (3) A person is not disqualied under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted. ” (Emphasis added) 35. That Hon Kibeh being a member of a County Assembly, was the holder of a State oce and therefore a State Ocer, is clear from article 260 of the Constitution which denes a State Ocer as a person holding a State oce and a member of a County Assembly as a State Oce. We are fortied in this by the Supreme Court decision in Fredrick Otieno Outa v Jared Odeyo Okello & 4 others [2014] eKLR, where the Supreme Court in dening a public ocer stated as follows: “ Strictly speaking, the proper meaning of public ocer, for purposes of the electoral law, is that embodied in article 260 of the Constitution as read together with section 2 of the Elections Act. The dierent denition in other statutory provisions, such as those https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 12

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enumerated earlier on, ought not to take precedence over the said constitutional provision. And thus, the proper meaning of “public ocer” – currently is: i. The person concerned is a State ocer; or ii. Any other person who holds “public oce” – an oce within the national government, county government, public service; iii. A person holding such an oce, being sustained in terms of remuneration and benets from the public exchequer” 36. Article 99(2)(a) provides that a person is disqualied from being elected as a member of Parliament if the person is a State Ocer other than a Member of Parliament. Article 99(2)(d) makes it clear that a member of the County Assembly falls within those State Ocers who are disqualied from being elected as a Member of Parliament. A reading of article 99(2) shows that the disqualication relates to election as a Member of Parliament. They do not relate to nomination. This means that the conditions provided for disqualication must be present as at the time of election as a Member of Parliament. This is when the issue whether the candidate is eligible for election comes into play. Article 99 deals with qualications and disqualications for elections as Member of Parliament, which is a stage after nomination. 37. A reading of the judgment shows that the learned judge did not draw any distinction between the qualications and disqualications for “nomination”, and the qualication and disqualication for “election.” While article 99 dealt with the latter, it did not deal with the former. The learned judge also rejected the view that nomination to contest membership is not an election, stating that for one to vie for any political seat established by the Constitution, he or she must be qualied to do so, and that in nominating candidates for various seats, political parties need to ensure that the candidates meet the requirements of the Constitution and the Elections Act, and IEBC must conrm that the candidates are not disqualied from contesting. 38. We nd that the learned judge misdirected himself in holding that nomination to contest membership of Parliament is an election within the meaning of article 99 of the Constitution. That Article does not state that for one to vie for any political seat established by the Constitution, he or she must be qualied to do so at the time of nomination. It is evident that the learned judge has conated “election”, which is the subject of disqualication in article 99 of the Constitution, with “nomination for election”, which is the subject of section 22(1) of the Elections Act. 39. We are in agreement with the nding of Mativo, J in the Stephen Wachira Karani case that the law does not prohibit a member of County Assembly from being nominated to vie for a parliamentary seat by a political party, as nomination to contest as a Member of Parliament is not an election within the meaning of article 99. Nomination for election and elections are actually two distinct stages in the electoral process that cannot be conated. Nomination must rst take place and, thereafter, those who are nominated contest the election. That is our understanding of the explanation of nomination by the Supreme Court in John Harun Mwau & 2 others vs IEBC & 2 others[2017] eKLR: “ …nomination is a process through which candidates are identied for participation in an election, subject to them being properly qualied under the law, for the elective seat that they seek. It is a critical component of an electoral process, without which there would be no election.” 40. In regard to the nding that section 43(5) & (6) of the Elections Act in so far as it seeks to override the express provisions of articles 99, 137 and 193 of the Constitution, was unconstitutional, we set https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 13

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out herein the provisions of section 43(5) & (6) of the Elections Act, which deal with participation in election by public ocers: “ (5) A public ocer who intends to contest an election under this Act shall resign from public oce at least six months before the date of election. (a) a public ocer who intends to contest in a by-election under the Act shall resign from public oce within 7 days of the declaration of vacancy. (6) This section shall not apply to – (a) the president (b) deleted (c) the deputy president (d) a member of parliament (e) a county governor, (f) a deputy county governor (g) a member of a county assembly.” 41. Section 43(5) of the Elections Act requires a public ocer who intends to contest an election under the Act to resign from public oce at least 6 months before the date of that election. Nonetheless, section 43(6) of the Elections Act exempts particular State ocers from the requirement in section 43(5). Under section 43(6) (g), a member of a County Assembly is one of the public ocers exempted from that section. This means that unlike other public ocers who are expected to resign from their public oce at least 6 months before the date of election, the ocers identied in section 43(6), including a member of a County Assembly, do not have to resign before the date of elections, and are not disqualied from contesting for a political position by virtue of these positions. 42. We do not see how section 43 is inconsistent with article 99 that we have already set out at paragraph 34 of this judgment. The section does not allow a member of a County Assembly to contest a political seat while still holding that position, but the member of County Assembly does not have to resign because they automatically cease to hold the position by the election date. If anything, the requirement for public servants to resign from the public oce is in tandem with the disqualication of public ocers provided under article 99(2) and gives public ocers a specic timeline within which to resign from their oces should they wish to contest an election. This timeline is pegged on the election date and, for a member of County Assembly, the disqualication would not be applicable on the election date, as their term in the County Assembly would have ended. 43. Article 137 of the Constitution states: “ (1) A person qualies for nomination as a presidential candidate if the person – a. is a citizen by birth; b. is qualied to stand for election as a member of parliament; c. is nominated by a political party or is an independent candidate; and https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 14

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d. is nominated by not fewer than two thousand voters from each of the majority of counties. (2) A person is not qualied for nomination as a presidential candidate if the person is – a. owes allegiance for foreign state; or b. is a public ocer, or is acting in any State or other public oce. (3) Clause 2 (b) shall not apply to the President, the Deputy President or a member of Parliament. 44. It is evident that article 137 deals with nomination for election as President, and subsection 2(b) of that article, specically disqualies a public ocer from being “nominated.” This is distinct from article 99(2) (d) which disqualies a public ocer from being “elected”. Similarly, article 137(3) excludes the President, Deputy President and Member of Parliament from the disqualication in article 137(2) (b), just as article 99(2) (a) excludes a member of Parliament from the disqualication in that article. Likewise, article 193 of the Constitution provides for qualication for election as member of County Assembly and expressly provides for disqualication of State ocers other than a member of County Assembly. Although in article 99 and 193 the disqualication relates to “election” and the disqualication and the exemptions provided in article 137 relates to nomination, the articles are all consistent with section 43 of the Elections Act to the extent that a State ocer is not qualied to contest at the time of elections. 45. We understand the rationale for excluding public ocers mentioned in section 43(6) of the Elections Act from the obligation to resign 6 months before the elections. They all hold positions of a political nature by virtue of their elections or nominations. These include the President, Deputy President, Member of Parliament, Governor, member of County Assembly, etc. who are elected for a 5-year term, that ordinarily terminates at the next general elections. If these State ocers are to resign 6 months before the general elections, their term would be reduced to 4½ years. 46. There would also be a vacuum as the constituencies they represent would be left without a representative for the 6 months as no by-elections can be held within that period. This is further reinforced by article 103(1) (f) of the Constitution which provides that the oce of a Member of Parliament becomes vacant at the end of the term of the relevant House. The members of Parliament do not therefore need to resign before the elections, as their positions would automatically cease at the end of the 5-year term to facilitate the elections and a new term in the House. Similarly, under article 194(1) (f), a member of a County Assembly would serve until the term ends automatically at the end of the term of the Assembly when new elections are held and the term of a new assembly starts. 47. As was held in Galaxy Paints Co Ltd v Falcon Guards Ltd [2000] EA 885, in any litigation the dispute between the parties is circumscribed by the parties through their pleadings and statement of agreed issues, if any. The issue of eligibility of a member of County Assembly, Governor or Deputy Governor, to contest the presidential election, or the President or Deputy President to contest a county assembly election without resigning as head of State, was not before the learned judge and it was not open to the learned judge to make pronouncements in this regard. The only issue before the court was qualication and disqualication of a member of the County Assembly for election as a Member of Parliament. That is what the learned judge ought to have restricted himself to. 48. In view of the foregoing, we come to the conclusion that, at the time of elections on August 9, 2017, Hon Kibeh was not a member of the County Assembly as her term had ended with the term of the https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 15

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County Assembly. The disqualication in article 99(2)(a)&(d) that deals with disqualication of State ocers and member of County Assembly for election as members of Parliament, that would otherwise have been applicable to Hon Kibeh if she was still a member of County Assembly, was no longer applicable to her. 49. Consequently, we allow this appeal, set aside the judgment of the High Court and all the orders made thereunder, and substitute thereof an order dismissing Hon Waibara’s petition. We award costs in the High Court and this court to the appellant and the 2nd respondent. Those shall be the orders of the court. DATED AND DELIVERED IN NAIROBI ON THIS 4TH DAY OF MARCH, 2022. HANNAH OKWENGU ..................................... JUDGE OF APPEAL K. M’INOTI ..................................... JUDGE OF APPEAL DR. K. I. LAIBUTA ................................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/388/eng@2022-03-04 16

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