<div class="akn-div parties-listing">
<div class="akn-div parties-separator">Between</div>
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<div class="akn-div party-name">Moses Kiarie Kuria</div>
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<div class="akn-div">Petitioner</div>
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<div class="akn-div parties-separator">and</div>
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<div class="akn-div party-name">Independent Electoral & Boudaries Commission</div>
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<div class="akn-div">1<sup class="akn-sup">st</sup> Respondent</div>
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<div class="akn-div party-name">Attorney General</div>
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<div class="akn-div">2<sup class="akn-sup">nd</sup> Respondent</div>
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23.In Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR, the Court summarized the principles for grant of conservatory orders as: -i.The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice.ii.The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.iii.Thirdly, the Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory.iv.Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order.
24.In Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board and others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR the Court summarized three main principles for consideration on whether to grant conservatory orders as follows: -(a)An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.(b)Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and(c)The public interest must be considered before grant of a conservatory order.
25.The above principles are, however, not exhaustive. Depending on the nature of the matter under consideration, there may be other parameters which a Court ought to look into. Such may include the effect of the orders on the determination of the case, whether there is eminent danger to infringement of the human rights and fundamental freedoms under the Bill of Rights, the applicability of the doctrine of presumption of constitutionality of statutes, whether the Applicant is guilty of laches, the doctrine of proportionality, among many others.The applicability of the principles to the application:i.A prima-facie case:
26.A prima facie case was defined in Mrao v First American Bank of Kenya Limited & 2 others (2003) KLR 125 to mean: -…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.
27.In a ruling rendered on 8th February, 2021 in David Ndii & others v Attorney General & others [2021] eKLR, the Court had the following to say about a prima-facie case: -
45.The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and in this case, arguable constitutional issues.
28.What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki v Attorney General Civil Appeal No 70 of 1991 (1990-1994) EA 156, (1992) KLR 8. The Court, in an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of his complaint. If he fails to show……. that there has been a failure of public duty, this court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables this court to prevent abuse by busy-bodies, cranks and other mischief-makers... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought. (emphasis added).
29.In Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, the Court while expounding on what a prima-facie case or arguable case is, stated that such a decision is not arrived at by tossing a coin or waving a magic hand or raising a green flag, but instead a Court must undertake an intellectual exercise and consider without making any findings, the scope of the remedy sought, the grounds and the possible principles of law involved.
30.The Court of Appeal in Nairobi Civil Appeal No 44 of 2014 Naftali Ruthi Kinyua v Patrick Thuita Gachure & another (2015) eKLR while dealing with what a prima facie case is, made reference to Lord Diplock in American Cyanamid v Ethicon Limited (1975) AC 396, when the Judge stated thus: -If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.
31.In sum, therefore, in determining whether a matter discloses a prima-facie case, a Court must look at the case as a whole. It must weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law. In so doing, a Constitutional Court must be guided by Articles 22(1) and 258(1) of the Constitutionwhich provisions are on the right to institute Court proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or the when the Constitutionhas been contravened, or is threatened with contravention.
32.In the Petition, the Petitioner seeks the following prayers: -a.An Order of certiorari be and is hereby issued calling into this court and quashing the decision of the 1st Respondent requiring that any person nominated as running mate must be bound by the provisions of the elections act as unlawful, unconstitutional and offending articles 27,28,38 and 180(6).b.A Declaration that Sections 43 (5) of the Elections Act 2011 is unconstitutional in as far the nomination of a deputy Governor/running mate is concerned;c.A Declaration that the Article 180(6) gives the gubernatorial aspirant the prerogative to nominate a running mate without conforming to the provisions of section 43(5) of the elections Act;d.Any other relief that the honourable court deems appropriate, just and fit to grante.Costs of this Petition.
33.This Court is aware of the Court of Appeal decision in Civil Appeal No 139 of 2017: County Government of Embu & another v Eric Cheruiyot & 15 others (now consolidated with Civil Appeal No 119 of 2017: Public Service Commission & 3 others v Eric Cheruiyot & 17 Others) (2022) eKLR where the constitutionality and applicability of the impugned provision to pubic officers was extensively dealt with.
34.A reading of the said decision confirms the position that the issues raised by the Petitioner herein were duly considered and settled. The finding of the Court of Appeal in that matter remain binding on this Court.
35.Resulting therefrom, this Court finds difficulty in ascertaining any *prima facie *in this matter. And, in the words of the Court of Appeal in Naftali Ruthi Kinyua v Patrick Thuita Gachure & another (2015) eKLR ‘…if there is no *prima facie *case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief’.
36.Having found that the Petitioner has failed to establish a prima facie case, the discussion on the application has to come to an end.