Constitutional and Human Rights Division v General & 1 other

opinion, asserting that the electoral process violated the Constitution and the statutory framework governing LSK elections. The Orders he seeks are enumerated hereundera. A declaration that within the intendment of Article 1(1), 1(3), 2(1), 2(2), 2(4), 3(1), 10, 19(1), 19(2), 19(3), 20(1), 20(2), 20(3), 20(4), 21(1), 22(1), 22(2), 23(1), 23(2), 24(1), 24(3), 27(1), 27(2), 36(1),47(1), 47(2), 50(1) 73(1), 73(2), 88, 159(2),165(3) 258(1), 258(2), and 259(1), of the Constitution the intended election violates the constitution of Kenya 2010. b. A declaration that the failure to follow the laid down procedure for the carrying out of the law society of Kenya elections under section 2, 4,5, 7a and 7b of independent electoral and boundaries commission act no. 9 of 2011, section 2, 4,6,12,17, 18 (1) (a),18(1)(b) and 20 of the of the law society of Kenya act no. 21 of 2014, section 2,3,12,26,29 the law society of Kenya (general) regulations, 2020, makes the electioneering process inconsistent with the provisions of Articles 1(1), 1(3), 2(1), 2(2), 2(4), 3(1), 10, 19(1), 19(2), 19(3), 20(1), 20(2), 20(3), 20(4), 21(1), 22(1), 22(2), 23(1), 23(2), 24(1), 24(3), 27(1), 27(2), 36(1),47(1), 47(2), 50(1), 73(1), 73(2), 88, 159(2),165(3) 258(1), 258(2), and 259(1) of the Constitution, and is therefore, illegal, null and void. c. An order be issued to compel the respondents to comply with the provisions of section section 2, 4,5, 7a and 7b of PET/E 100 OF 2024 Page 2 OF 7

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independent electoral and boundaries commission act no. 9 of 2011, section 2, 4,6,12,17, 18 (1) (a),18(1)(b) and 20 of the of the law society of Kenya act no. 21 of 2014, section 2,3,12,26,29 the law society of Kenya (general) regulations, 2020. d. A declaration that without proper composition of the 2nd interested party commission render any electoral process null and void hence infringement of section 2, 4,5, 7a and 7b of independent electoral and boundaries commission act no. 9 of 2011, section 2, 4,6,12,17, 18 (1) (a),18(1)(b) and 20 of the of the law society of Kenya act no. 21 of 2014, section 2,3,12,26,29 the law society of Kenya (general) regulations, 2020. e. An advisory opinion to be issued to the Respondents to adopt administrative, policy, legal and regulatory mechanism that will allow the proper and transparent electoral process of the 2nd respondent council 2024-2026. f. There be an order as to costs. 2. The 1st Respondent, the Hon. Attorney General, and the 2nd Interested Party, the Independent Electoral and Boundaries Commission, oppose the Petition and have filed Grounds of Opposition and a Replying Affidavit respectively. The Petition was canvassed through written submissions. A close reading of the submissions reveals that, to a large extent, the parties merely PET/E 100 OF 2024 Page 3 OF 7

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restated and amplified the positions already set out in their pleadings. In the circumstances, and for purposes of coherence and judicial economy, I shall consider the pleadings and submissions together as a composite whole. 1ST RESPONDENT’S CASE 3. The Attorney General opposes the Petition through Grounds of Opposition dated 3rd July 2024, asserting that he is improperly joined and that the Petition is fatally defective for failing to meet the constitutional pleading threshold. 4. He invokes the celebrated principle in Anarita Karimi Njeru v Republic [1979] KLR 154, which requires a petitioner to plead constitutional violations with precision. He further relies on the Court of Appeal’s reaffirmation of that standard in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, where the Court held that a constitutional petition must set out the specific rights violated, the manner of violation, and the nexus between the facts and the alleged breach. 5. The Attorney General argues that the Petitioner merely cites constitutional PET/E 100 OF 2024 provisions without Page 4 OF 7 demonstrating factual

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violations. He further contends that no cause of action lies against his office, as none of the substantive prayers are directed at him. 2ND INTERESTED PARTY’S CASE 6. The IEBC, through the affidavit of Chrispine Owiye, argues that the Petition is moot because the elections have already been conducted. 7. It submits that the Petition does not meet the constitutional threshold under the Anarita Karimi and Mumo Matemu line of authorities, and that no violation has been demonstrated against the Commission. 8. On the question of quorum, the IEBC relies on the High Court’s reasoning in Al Ghurair Printing & Publishing LLC v CORD & 2 Others [2017] eKLR, where the Court distinguished the roles of Commissioners from those of the Secretariat, holding that certain administrative and operational functions may be undertaken by the Secretariat without the direct involvement of Commissioners. PET/E 100 OF 2024 Page 5 OF 7

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9. The IEBC therefore argues that the LSK elections were an administrative function that did not require the participation of Commissioners. 10. Finally, the IEBC submits that the High Court lacks jurisdiction to issue advisory opinions, as that mandate is reserved exclusively for the Supreme Court under Article 163(6) of the Constitution. ANALYSIS AND DETERMINATION 11. Having considered the Petition, the responses, and the written submissions—the following issues arise for determination: a. Whether the Petition meets the constitutional threshold for pleadings? b. Whether the 1st Respondent, the Attorney General, was properly joined to these proceedings? c. Whether the nomination and participation of the IEBC in the LSK elections was unconstitutional on account of lack of quorum? d. Whether the High Court has jurisdiction to issue an advisory opinion in the terms sought? e. Whether any reliefs are available to the Petitioner? 12. The 1st Respondent and the IEBC both contend that the Petition is fatally defective for failing to meet the precision requirement established in Anarita Karimi PET/E 100 OF 2024 Page 6 OF 7

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Njeru v Republic [1979] KLR 154, and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. They argue that the Petitioner merely cites a long list of constitutional provisions without demonstrating the factual basis of the alleged violations. 13. Indeed constitutional petitions must be pleaded with reasonable precision. In Khen Kharis Mburu v Inspector General of Police Service & 3 others 2019] eKLR, the Court held that: “ One of the cardinal principles in Constitutional litigation is that a party who claims that a right or fundamental freedom has been violated, is being violated or is threatened, must plead with accuracy and precision demonstrating the right violated or infringed, the Article of the Constitution violated and the jurisdictional basis for it. That is, it is now an established principle of law that anyone who wishes the Court to grant a relief for violation of a right or fundamental freedom must plead in a precise manner the Constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.” 14. The test in the ‘precision rule’ is simply whether the Petition gives the respondent adequate notice of the case they are required to meet. However, the doctrine does not demand technical exactitude, perfect drafting or stylistic elegance; it PET/E 100 OF 2024 Page 7 OF 7

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requires clarity sufficient to notify the Respondents of the case they must answer. The Petition identifies the core complaint: that the IEBC, allegedly non-quorate, could not lawfully conduct the LSK elections. That issue is sufficiently articulated to permit adjudication. Accordingly, while inelegantly drafted, the Petition is not so vague as to be struck out at the threshold 15. On the inclusion of the Attorney General in these proceedings, I find that the Petition discloses no factual or legal nexus between the Attorney General and the impugned electoral process. His joinder was therefore unnecessary and improper. The Petition against him fails. 16. On the third issue, on whether the elections having been conducted by IEBC ought to be nullified, the Petitioner’s central argument is that the IEBC lacked quorum at the time of its nomination and therefore could not lawfully conduct the LSK elections. 17. I am persuaded by the reasoning of the Court in Al Ghurair Printing & Publishing LLC v CORD & 2 Others [2017] eKLR that the Secretariat may perform PET/E 100 OF 2024 Page 8 OF 7

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administrative functions without commissioners. The 2nd respondent merely contracts the 2 nd Interested party to handle the logistical end of its elections 18. The LSK elections are internal elections of a statutory body, conducted pursuant to the LSK Act and the LSK (General) Regulations, 2020. Rule 26 permits the nomination of an external electoral body. 19. that The Petitioner has not demonstrated the Secretariat lacked authority to undertake the administrative task of supervising the LSK elections. Nor has he shown any irregularity in the conduct of the elections themselves. 20. The challenge therefore fails 21. The High Court does not have jurisdiction to issue advisory opinions; this is vested solely in the Supreme Court by Article 163(6) of the Constitution 22. conducted, The and PET/E 100 OF 2024 no elections malpractice Page 9 OF 7 or have already prejudice has been been

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demonstrated. The Petition is therefore largely moot. Courts do not issue orders in vain or grant academic relief. 23. The Petition is dismissed in its It is so ordered. SIGNED, DATED AND DELIVERED VIRTUALLY NAIROBI THIS 18TH DAY OF JUNE, 2026. AT entirety; each party will bear their own costs. P .M NYAUNDI JUDGE In the Presence of Fardosa Court Assistant No appearance by parties PET/E 100 OF 2024 Page 10 OF 7

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