Independent Electoral Commission of Kenya v Karua and Others (Application No.45 of 2022) [2024] EACJ 12 (28 November 2024) (First Instance Division)


IN THE EAST AFRICAN COURT OF JUSTICE AT ARUSHA FIRST INSTANCE DIVISION


(Coram: Yohane B. Masara, PJ; Richard Muhumuza, Richard Wabwire Wejuli Leonard Gacuko & Kayembe Ignace Rene Kasanda, JJ)

APPLICATION NO. 45 OF 2022

(Arising from Reference No. 56 of 2022)

THE INDEPENDENT ELECTORAL COMMISSION OF KENYA ....................................

VERSUS

MARTHA WANGARI KARUA ...................................

MUSLIMS FOR HUMAN RIGHTS (MUHURI .......... 2^ND RESPONDENT

THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA ....................................

28^TH NOVEMBER, 2024

RULING OF THE COURT

A. INTRODUCTION

- 1. This Application was filed on 19th December 2022 by the Independent Electoral and Boundaries Commission of Kenya, the proposed Intervener ("IEBCK" or "the Commission"). - 2. The Proposed Intervener seeks leave to be joined in Reference No. 56 of 2022 before this Court ("the Court") pursuant to Article 40 of the Treaty for the Establishment of the East African Community ("the Treaty") and Rule 59 of the East African Court of Justice Rules of the Court, 2019 ("the Rules"). - 3. The Applicant is an independent constitutional body established under Articles 88 and 248(2)(c) of the Constitution of Kenya, 2010. - 4. The Applicant's core mandate includes conducting and supervising referenda and elections to elective offices established by the Constitution. - 5. The 1st Respondent is a Kenyan National and Politician. She was the Deputy Presidential Candidate of the Azimio la Umoja One Alliance formation, in which NARC Kenya is a member. She was also the 2nd Applicant in Presidential Election Petition No. E00S of 2022, lodged in the Supreme Court of Kenya. Her address of service is c/o Mr Donald Omondi Deya, No. 3 Jandu Road, Corridor Area, P.

0. Box 6065 Arusha, Tanzania. - 6. The 2nd Respondent is a Non-Governmental Organization based at the Kenyan Coast. Their address of service shall be c/o Ms Esther

Application No. 45 of 2022 Page 1

Muigai-Mnaro, Advocate, No. 3 Jandu Road, Corridor Area, P.

0. Box 6065 Arusha, Tanzania.

7. The 3rd Respondent, is the Attorney General of the Republic of Kenya sued in his capacity as the Principal Legal Advisor to the Government of Kenya.

B. REPRESENTATION

8. The Applicant was represented by Advocates George Murugu, Victor Liech, Joy Anami and Ronald Wahisi, the 1st Respondent was represented by Advocate Esther Muigai Mnaro and the 2nd Respondent was represented by Advocates Eric Gumbo, Nura Abdikarim Hassan and Elias Ouma.

C. BACKGROUND

- 9. On August 9, 2022, presidential elections were held in the Republic of Kenya. The results of the elections, conducted by the Commission, were declared on August 15, 2022. - 10. On 3rd November 2022, Ms Martha Karua and Muslims for Human Rights filed Reference No. 56 of 2022 in this Court against the Attorney General of the Republic of Kenya, alleging violations in the conduct of the IEBC in organizing and managing the Presidential Election in which IEBCK allegedly breached Kenya's Constitution, electoral laws and international legal principles, including those under the Treaty and various African Union instruments, in the process of declaring the 9th August 2022 presidential election results.

11. In the Reference, the Applicants seek various reliefs against the Respondent, primarily challenging the processes, actions, and decisions in respect of the impugned elections.

D. GROUNDS AND BASIS FOR INTERVENTION

- 12. The grounds and basis of the Application are extensively stated in the Application and in the Affidavit in Support of the Application, deponed by Chrispine Owiye, the IEBCK Director Legal Services, but briefly are that: - i. The Respondent, as the Attorney General, was not involved in the conduct of the elections and is not privy to the specific planning or logistical decisions of the Commission. As such, the Respondent cannot adequately address the allegations raised in the Reference; - ii. It has a direct and immediate interest in the issues raised in the Reference; - iii. Its intervention will not enlarge the issues but will aid in the effective adjudication of the matter. Granting the Commission leave to intervene will enable the Court to adjudicate and settle all the issues effectively and completely; - iv. Its actions and decisions are governed by Articles 88 and 249(2) of the Constitution of Kenya, 2010, which mandate its independence and subject it only to the Constitution and the law;

- v. The Commission contends that it conducted the August 9, 2022, presidential elections in compliance with its constitutional and statutory mandate; - vi. The allegations against the Commission's Chairperson pertain directly to its statutory and constitutional functions. - vii. The Commission's intervention is necessary to provide clarity on the contested actions and ensure the integrity of the proceedings; and - viii. The Commission's intervention is limited to addressing the orders sought in the Reference specifically those implicating its mandate and actions. Its participation will not prejudice the existing parties or expand the scope of the issues before the Court. It undertakes to accept the proceedings as they stand at the time of intervention and abide by the Court's decision. - 13. When this Application came up for hearing on September 24, 2024 Mr Eric Gumbo, representing the 2nd Respondent, drew the Court's attention to a significant preliminary issue. He pointed out that Application No. 45 of 2022 and Application No. 47 of 2022, both filed by the IEBCK, shared overlapping facts and legal issues, as they arose from the same cause of action-the inquiry into the conduct and results of the presidential elections. He submitted that both Applications targeted similar Respondents, raised substantially

identical issues, and sought comparable prayers, primarily related to the IEBCK's participation in the proceedings as an intervener.

- 14. Relying on Rules 4 and 6 of the Rules of this Court, Mr Gumbo proposed consolidation of the References and Applications, arguing that such an approach would save judicial time, minimize logistical challenges for the parties, and reduce costs. He also contended that consolidation would streamline the handling of interlocutory Applications and preliminary issues, enabling the Court to address all matters comprehensively within a singular framework. - 15. Counsel for the IEBCK, supported Mr Gumbo's position, adding that consolidation would ensure procedural fairness. - 16. While Ms Esther Muigai Mnaro, representing the 1st Respondent, had no objection to the intervention sought by IEBCKK, she opposed the suggestion of consolidation. She argued that her client's Reference raised distinct issues that could not be subsumed into a broader inquiry. Specifically, she noted that her client's Reference addressed alleged violations of constitutional principles during the elections and emphasized the need for an independent assessment of these claims. She urged the Court to maintain the individuality of each Reference to ensure thorough and just deliberations. - 17. In his submissions, Mr Gumbo confirmed that the Attorney General supported the IEBCK's Application for intervention. Similarly, Ms Mnaro confirmed her client's lack of opposition to the IEBCK's intervention but reserved the right to respond to their substantive submissions at a later stage.

- 18. On the occasion, the Court guided that its immediate focus was on determining the Intervener Applications before it and that the issue of consolidation would be addressed at a later stage, once all Applications had been fully canvassed. The Court resolved to proceed with the hearing of the IEBCK's Application, deferring the question of consolidation. - 19. Mr Ronald Wahisi argued that the IEBCK as the constitutional body charged with organizing and overseeing Kenya's general elections, was directly implicated in the conduct of the elections and the subsequent declaration of presidential results. That these results formed the core of the dispute in the Reference, making it imperative for the IEBCK to respond to the allegations directly. - 20. Counsel emphasized that the allegations in the Reference challenged the IEBCK's actions and decisions, which could not be fully represented by the Attorney General. He contended that the IEBCK's participation would ensure a thorough and substantive response to each specific allegation raised by the Petitioner, enhancing the quality of evidence and argument before the Court. Further, that the IEBCK possessed additional information and documentation pertinent to the Reference, which might not be within the purview of the Attorney General. He drew Court's attention to Paragraph 18 of the IEBCK's written submissions, which outlined the IEBCK's direct and immediate interest in the Reference and underscored the value of its contributions beyond those already provided by the Attorney General.

21. Mr Wahisi stressed the importance of allowing the IEBCK, as an independent constitutional body, to defend its conduct directly. He contended that this would uphold the principles of transparency and accountability, ensuring that the IEBCK could present its perspective without relying entirely on the Attorney General's office.

E. COURT'S DETERMINATION

- 22. Having carefully considered the context of the Applications and the submissions made by counsel, we noted that, indeed, Applications No. 45 of 2022 and No. 47 of 2022, both filed by the Independent Electoral and Boundaries Commission, stem from the same cause of action-the inquiry into the conduct and results of the Kenyan presidential elections held on August 9, 2022. Both Applications involve overlapping facts and raise substantially similar legal and procedural issues. - 23. As indicated above, this shared context was aptly highlighted by Mr Eric Gumbo, counsel for the Attorney General of Kenya, who submitted that the Applications target similar Respondents, advance substantially identical issues, and seek comparable prayers related to the I EBCK's participation as an intervener. - 24. The Court recognizes that consolidation of such Applications is generally appropriate where overlapping issues exist. Consolidation serves the interests of judicial economy by saving time, reducing logistical challenges, and minimizing costs. However, the Court is also mindful of concerns raised by Ms Esther Muigai Mnaro, counsel for the 1st Respondent, who argued that her client's Reference raised distinct constitutional issues requiring individualized consideration.

- 25. In our deliberations, the Court remains committed to balancing judicial efficiency with procedural fairness, ensuring that no party's case is prejudiced. To that end, the Court's immediate focus has been on addressing the IEBCKK's Applications for intervention on their merits, independently and without consolidation at this stage. - 26. Having reviewed all the materials and arguments, the Court finds that the IEBCK's Applications for intervention in Applications No. 45 of 2022 and No. 47 of 2022 are substantively identical. A unified decision on the matter is therefore both procedurally justifiable and in the interest of judicial economy and that is the approach we have taken. When doing so, we have ensured that all issues raised are comprehensively addressed without unnecessary duplication, while respecting the procedural and substantive rights of all parties involved. - 27. Accordingly, the Court's decision on the IEBCK's Application for intervention is substantively rendered under Application No. 47 of 2022. This Ruling will be appropriately adopted for the record in Application No. 45 of 2022. - 28. The Court assures the parties that this procedural determination does not prejudice the merits of any case or issue presented within the respective References.

Dated, signed and delivered at Arusha this 28^th day of November, 2024.

Gremae Hon. Justice Yohane B. Masara PRINCIPAL JUDGE ...... Hon. Justice Richard Muhumuza JUDGE . . . . . . . . . . . . . . . . . . . Hon. Justice Richard Wabwire Wejuli JUDGE Hon. Justice Dr Léonard Gacuko JUDGE Dannu

Hon. Justice Kayembe Ignace Rene Kasanda JUDGE

Application No. 45 of 2022