Munya v Kithinji & 2 others: Supreme Court Jurisdiction in Election Petitions and Principles for Granting Conservatory Orders

Court and Citation:

Supreme Court of Kenya Application 5 of 2014 JB (Ojwang & SC Wanjala, SCJJ) Ruling delivered on 2 April 2014 Neutral citation: KESC 30 (KLR)

Background

The applicant, Gatirau Peter Munya, was declared the elected Governor of Meru County following the 4^th March 2013 elections. The 1^st Respondent, Dickson Mwenda Kithinji, a registered voter, filed a petition in the High Court challenging the election results on grounds including voter bribery, electoral malpractices, and contraventions of constitutional and electoral laws, particularly articles 81(e) and 86 of the Constitution. The High Court dismissed the petition and upheld the applicant’s election.

The 1^st respondent appealed to the Court of Appeal, seeking to set aside the High Court’s judgment and nullify the election. The Court of Appeal identified issues including whether errors and irregularities materially affected the election, the correctness of the limited scrutiny/recount ordered by the High Court, and whether the High Court judge independently evaluated the evidence. The Court of Appeal held that the election did not meet the constitutional threshold of Article 81(e)(iv) and (v) and Article 86, set aside the High Court’s judgment, and declared the applicant’s election null and void.

Aggrieved by this decision, the applicant filed an application under certificate of urgency in the Supreme Court seeking orders to stay the execution of the Court of Appeal’s judgment, stop the Independent Electoral and Boundaries Commission (IEBC) from declaring the Meru Gubernatorial office vacant and conducting fresh elections, and stop the Speaker of the County Assembly from assuming the office of Governor. The 1st respondent raised a preliminary objection, contending that the Supreme Court lacked jurisdiction to entertain both the application and the substantive appeal.

Substantive Issues Analysed by the Supreme Court

Jurisdiction of the Supreme Court in Election Petitions

The central issue raised by the 1^st respondent’s preliminary objection was the Supreme Court’s jurisdiction to hear the appeal. The 1^st respondent argued that the appeal did not fall under Article 163(4)(a) of the Constitution, which grants appeal as of right “in any case involving the interpretation or application of this Constitution”. He contended that the dispute before the High Court and Court of Appeal was essentially about whether the election was fair, not constitutional interpretation or application, and that the applicant was largely challenging the interpretation of ordinary statutes like Section 85A of the Elections Act or rules like Rule 33(4) of the Election Petition Rules. The 1^st respondent relied on Peter Oduor Ngoge v. The Hon Francis Ole Kaparo & 5 Others, where the Court held that only “cardinal issues of law or of jurisprudential moment” deserve the Supreme Court’s input, not every matter of a political nature. He further argued that most constitutional provisions cited by the applicant were not canvassed before the Court of Appeal.

The applicant countered that the appeal fell squarely within Article 163(4)(a). He argued that the Court of Appeal had interpreted Articles 81(e) and 86 of the Constitution, which formed the basis for the nullification of the election. Counsel referred to the initial petition which challenged the election conduct as inconsistent with constitutional provisions like Articles 1, 3, 38, and 81. He submitted that the Court of Appeal’s interpretation of Section 85A of the Elections Act and Rule 33(4) of the Election Petition Rules also involved constitutional issues, citing alleged violations of Articles 94(1), 1(2), 3(a), 87(1), 164(3)(b), and 164. The applicant also argued that findings by the Court of Appeal regarding evidence compromised his right to fair trial under Articles 50(1) and 25, which constituted substantive issues of non-compliance with the Constitution. The applicant cited Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, where the Supreme Court embraced a purposive interpretation of the Constitution and held that appeals lie where there are issues of law before the appellate court involving constitutional interpretation/application.

The Court, referring to its previous decisions in Lawrence Nduttu & 6000 Others v. Kenya Breweries Ltd & Another and Samuel K. Macharia and Another v. Kenya Commercial Bank and Others, reiterated that Article 163(4)(a) means that only appeals arising from cases involving the interpretation or application of the Constitution can be entertained. It clarified that it is not a “mere allegation in pleadings” that clothes an appeal with the attribute of constitutional interpretation. The appeal must originate from a Court of Appeal case where “issues of contestation revolved around the interpretation or application of the Constitution”, and the appellant must be “faulting the Court of Appeal on the basis of such interpretation”. The Court referenced the Ngoge case, noting that the appellant must demonstrate that the Court of Appeal’s reasoning “can properly be said to have taken a trajectory of constitutional interpretation or application”.

Applying these principles, the Court observed that, even from the High Court stage, the central issue was whether the election was conducted in accordance with constitutional principles, specifically Articles 81(e) and 86. The Court found that throughout its analysis and assessment of evidence, the Court of Appeal was applying these articles, as evidenced by its conclusion that the election “did not meet the Constitutional threshold in Article 81 (e) (iv) & (v) and Article 86 of the Constitution”. The Court held that while the Elections Act and Regulations are ordinary statutes, they are “normative derivatives” of the principles embodied in Articles 81 and 86, and their interpretation cannot disengage from the Constitution.

Therefore, the Court held that the appeal fell within the ambit of Article 163(4)(a) because the case rested on “clear issues of constitutional interpretation”, involving a “wide range of constitutional provisions” touching on individual fundamental rights and collective political rights and interests (notably Articles 38, 81, and 182). The Court noted its mandate under the Supreme Court Act to “assert the supremacy of the Constitution” and “provide authoritative and impartial interpretation”. It disallowed the preliminary objection regarding jurisdiction. The Court also found that the appeal passed the “merit test” for being heard, citing Joho on the Court’s discretion to adjudicate upon issues that bring the interpretation or application of the Constitution into question.

Scope of Appeal from High Court to Court of Appeal in Election Petitions

A related point of law discussed was the scope of appeal from the High Court to the Court of Appeal in election petitions concerning governorship, which is limited to “matters of law only” under Section 85A of the Elections Act. The applicant argued that the Court of Appeal exceeded this limitation by delving into issues of fact and reopening evidence, contrary to Section 85A and the Court of Appeal’s own precedent in Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 Others. In Timamy Issa Abdalla, the Court of Appeal had cautioned that where the right of appeal is limited to matters of law, the court must be careful to isolate conclusions of law from facts and only interfere with conclusions of law that cannot reasonably be drawn from the lower court’s factual findings. The applicant submitted that the Court of Appeal also erred in interpreting Rule 33(4) of the Election Petition Rules, which amounted to legislating and violated constitutional provisions and the Elections Act. These arguments formed part of the basis for asserting the arguable nature of the appeal before the Supreme Court.

Burden of Proof The applicant contended that the Court of Appeal shifted the burden of proof in the election petition, which was presented as another ground for appeal. The applicant argued that the Court of Appeal held that the respondent (applicant herein) had the onus of proving allegations made by the petitioner (1st respondent herein). This was highlighted as a substantive issue raising non-compliance with the Constitution.

Right to Fair Trial

The applicant argued that his right to a fair trial was compromised by the Court of Appeal’s findings regarding the evidence on record. Specifically, he challenged the Court of Appeal’s finding that the defence witness DW10 was not cross-examined on Forms 35 and 36. He also contested the Court of Appeal’s finding that annexures DMK2, DMK3, and DMK4 had been expunged from the High Court record, demonstrating that the application to strike them out had been denied. These alleged misinterpretations of the record by the Court of Appeal were argued to have influenced the decision and violated the applicant’s right to a fair trial under Articles 50(1) and 25 of the Constitution. These were presented as grounds supporting the arguable nature of the appeal.

Nature of Election Petitions

The Court discussed the nature of election petitions, stating they are “both disputes in personam and disputes in rem“. While they involve the contestants, the “voters always have a stake in the ultimate determination of the dispute, hence the public interest”. The 1st respondent also argued this point, noting that the office of governor is elective and a public-interest issue.

Distinction Between Injunctions, Stay Orders, and Conservatory Orders

The Court explicitly distinguished between different types of interlocutory reliefs.

• Injunctions are said to belong to the “sphere of civil claims” and are “issued essentially on the basis of convenience as between the parties, and of balances of probabilities”.
• Stay orders are described as “more general” and “merely denote that no party or interested individual or entity is to take action until the court has given the green light”.
• Conservatory orders are distinguished as bearing a “more decided public-law connotation”. They are orders that “facilitate orderly functioning within public agencies, as well as uphold the adjudicatory authority of the Court in the public interest”. Crucially, the Court stated that conservatory orders are “not, unlike interlocutory injunctions, linked to such private-party issues like ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the applicant’s case for orders of stay”.

This distinction is important as it frames the type of order the Court considers granting in this public law matter.

Principles for Granting Stay/Conservatory Orders

The Court outlined the principles to be considered before granting orders of stay of execution. The traditional principles, crystallized through judicial authorities, require the appellant to satisfy the court that:

1. The appeal or intended appeal is arguable and not frivolous.
2. Unless the order of stay is granted, the appeal, were it to eventually succeed, would be rendered nugatory.

The Court then added a third condition in the context of the Constitution of Kenya, 2010: 3. It is in the public interest that the order of stay be granted. This condition is dictated by the “expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution”.

Applying these principles to the case:

• Arguable Appeal: The Court found the appeal to be arguable and not frivolous, citing the applicant’s grounds impugning the Court of Appeal’s judgment based on alleged misinterpretations of findings, exceeding jurisdiction (delving into facts), disregarding stare decisis, and applying the wrong burden of proof principle.
• Nugatory Appeal: The Court considered two scenarios if fresh elections were held pending appeal: the applicant could seek re-election while appealing, and if the appeal succeeded after he had been re-elected (or failed to be re-elected), the appeal would be rendered nugatory from his perspective (as the objective was to avoid a fresh election). The Court concluded that these possibilities could render the appeal nugatory.
• Public Interest: The Court explicitly considered the public interest. It highlighted the “devastating impact” of potentially voided fresh elections on other contestants (expense, participation in vain), the electorate (“grave disturbance” of voting in a meaningless election), and the IEBC (applying public funds and resources in vain). The Court framed the applicant’s prayer as a conservatory order seeking to maintain the “current occupancy of the Governor’s office” and hold the “motion towards new elections” in abeyance . It stated that while the right to hold office is a constitutional right (Article 38), the “public interest in fairly-conducted elections, and in legitimate office-holding, looms larger still” . The Court emphasised the need for “proper husbandry over public monetary and other resources” as a major challenge of governance, and that courts “must ever have an interest in contributing to the safeguarding of such resources” . The potential waste of public funds and disturbance to the electorate presented in the scenarios where fresh elections might be rendered meaningless weighed heavily in favour of granting the order. The Court concluded that its “conscientious sense of proportions” and contribution to “good governance” dictated against allowing fresh elections pending the appeal, favouring instead an expedited hearing .

The distinction between injunctions (private law, irreparable harm, probability of success) and conservatory orders (public law, public interest, constitutional values, inherent merit) is key ratio decidendi regarding interlocutory reliefs in public law matters before the Supreme Court. The identification of the three principles for granting such orders (arguable appeal, nugatory appeal, public interest) and the application of these principles to the facts of an election petition appeal, particularly the weight given to public interest and resource management, also forms significant ratio. The analysis of the Supreme Court’s jurisdiction under Article 163(4)(a), drawing on precedent, is also ratio concerning this aspect of the Court’s mandate.

Final Disposition

The Court disallowed the 1st respondent’s preliminary objection on jurisdiction and found the applicant’s appeal merited being heard. The Court allowed the applicant’s motion for interlocutory orders. It ordered a stay of execution of the Court of Appeal’s judgment and issued conservatory orders against the IEBC declaring the Meru County Governor’s seat vacant, the Speaker of the County Assembly assuming the office of Governor, and the IEBC setting in motion the process for a fresh gubernatorial election, all pending the hearing and determination of the appeal. The Court directed the Registrar to arrange for the appeal to be heard and disposed of on a priority and frequent basis, and for the file to be placed before the Chief Justice to constitute a full bench for the appeal proceedings.