The High Court yesterday dismissed a case by former Nairobi Governor Mike Mbuvi Sonko challenging a decision by the electoral agency to disqualify him from contesting the Mombasa gubernatorial elections on August 9.
Justice John Mativo allowed a preliminary objection by the Independent Electoral and Boundaries Commission (IEBC) against Mr Sonko’s case, saying, it was a nomination dispute that was capable of being resolved by the commission’s Dispute Resolution Committee.
He further ruled that he was unable to find any exceptional circumstances in the case to warrant Mr Sonko to bypass IEBC’s dispute resolution mechanisms.
“Internal remedies must be exhausted unless there are exceptional circumstances,” said Justice Mativo.
The judge also ruled that a formal application ought to have made for exemption from IEBC’s dispute resolution mechanisms. He said the case offends the Fair Administrative Act and that it was sub judice as there was a related case being handled by a three-judge bench of the High Court.
In its objection, IEBC had argued that the case goes against the Elections Act as it seeks to circumvent its internal dispute resolution processes.
Through lawyer Ndaiga Gacheru, IEBC told court that Mr Sonko had not exhausted all dispute resolution mechanisms before filing the case. Mr Gacheru said Mr Sonko had not made an application to illustrate exceptional circumstances that would allow him to file the case without going through IEBC’s dispute resolution processes.
“Contrary to submissions earlier made, there must be a formal application by the applicant to be exempted from the dispute resolution mechanism,” said Mr Gacheru. IEBC further argued that the case by Mr Sonko was seeking similar orders as the one before the three-judge bench as they touch on the issue of clearance to contest the Mombasa Governor’s seat and acceptance of nomination papers.
Through lawyers Derrick Odhiambo and Titus Kirui, Mr Sonko opposed IEBC’s objection arguing that the Election Act allows exemptions from IEBC’s dispute resolution mechanisms.
Mr Odhiambo argued that the application before the court was not an election dispute and that the tribunal does not have powers to issue the order they are seeking.
He further said that the exhaustion doctrine was waived by the electoral body’s media release communicating the disqualification of Mr Sonko even before he presented his credentials.
“The dispute before you is purely administrative and not an election dispute,” said Mr Odhiambo, adding that the court has jurisdiction to determine whether the right to fundamental freedoms has been infringed upon.
Mr Odhiambo said that the issues of sub judice does not apply in the case and that jurisdiction of the High Court is intact where a public body has acted ultra vires (beyond its legal powers).
Mr Kirui added that Mr Sonko was apprehensive that he will not get a fair hearing before IEBC considering utterances made by the agency in its media release.
“The utterances leave no doubt that the chairperson [of IEBC] and the electoral body has either a fixed mind or is hostile to [Mr Sonko],” said Mr Kirui.
In his case, Mr Sonko wanted to have the decision by IEBC and its chairperson, Mr Wafula Chebukati to disqualify him contained in a media release on June 4 and dated May 17 quashed.
Mr Sonko also wanted to have a decision of the County Returning Officer in Mombasa declining to clear him to vie also quashed.
“There are other connected matters pending in connection with this matter in which [Mr Sonko] has an interest and in which the office of the Attorney-General is acting,” Mr Sonko said in his suit papers.
Mr Sonko said the decision by IEBC was premature, prejudicial, oppressive and has already caused irredeemable damage and untold suffering to him.
Mr Sonko wanted his application heard and determined expeditiously and a stay of IEBC and its chairperson’s decision be granted pending hearing and determination of the application.
“This is a matter of significant public interest ... and it is in the interest of justice that it is heard and determined expeditiously given the tight electoral timelines,” said Mr Sonko.
According to Mr Sonko, the decision of IEBC and its officials was erroneous and discriminatory since there are other candidates who were impeached or convicted for 66 years and have active appeals before court but they have been cleared to vie.
Mr Sonko also wanted to have IEBC officials compelled to receive his nomination papers and clear him to vie pending hearing and determination of the application inter partes.
