Aluochier v Senate & 2 others (Petition E014 of 2025) [2025] KESC 59 (KLR) (3 October 2025) (Judgment)

Aluochier v Senate & 2 others (Petition E014 of 2025) [2025] KESC 59 (KLR) (3 October 2025) (Judgment) Neutral citation: [2025] KESC 59 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E014 OF 2025 MK KOOME, CJ, SC WANJALA, N NDUNGU, I LENAOLA & W OUKO, SCJJ OCTOBER 3, 2025 BETWEEN ISAAC ALUOCH POLO ALUOCHIER ................................................ APPELLANT AND THE SENATE .................................................................................. 1ST RESPONDENT JEREMIAH M. NYEGENYE, CLERK OF THE SENATE ......... 2ND RESPONDENT RT. HON. AMASON JEFFAH KINGI ......................................... 3RD RESPONDENT (Being an appeal from part of the Judgment of the Court of Appeal (Musinga (P), Asike Makhandia & Nyamweya, JJ.A) in Civil Appeal No. E104 of 2023 delivered on 21st March, 2025) Eect of an omission by respondents who were a State organ and two State ocers, to pay fees attendant to the ling of court pleadings The key assertions in a petition challenging the validity of the election of the Speaker of the Senate included that the elected Speaker and all other candidates in the election, with the exception of the petition, were ineligible to vie for the post and that as the only eligible candidate, the petitioner ought to have been declared duly elected as Speaker of the Senate. A request by the petitioner for the candidates’ nomination papers, which would have provided documentary evidence on the candidates’ qualifications, under the right to access information pursuant to article 35 of the Constitution, had been declined by the Clerk of the Senate on grounds exemption on account of privacy. The Supreme Court found that evidence to support the assertion had not been tendered. While the court found that a request for the documents had been declined, it held that the appellant should have exhausted statutory mechanisms for review of that decision made by the Clerk of the Senate before moving the High Court. Furthermore, the Supreme Court held that it could not assume the existence of the information sought. Additionally, the Supreme Court held that candidates to the election were all necessary parties and they could have provided documentation when sued. Reported by Beryl Ikamari Constitutional Law - right to access information - where information was sought and some of it was provided while part of the information was withheld on grounds of privacy - where a party sought to rely on the information that had been withheld without providing it as documentary evidence, without suing all the persons with access to the information as parties to the suit and without having utilized avenues for redress provided for in statute with respect to the information which was withheld - whether a claim as to the existence of the withheld information had evidentiary value. Evidence Law - burden of proof - documentary evidence - whether an appellant had tendered sufficient evidence to support an allegation that all candidates, except the appellant, in an election for the position of Speaker of the Senate, were ineligible to participate in the election. Constitutional Law - fundamental rights and freedoms - rights to fair administrative action and fair hearing - setting out and substantiating claims of violations of human rights - claims that included failure to provide reasons for an election outcome to an election candidate - whether an appellant had proved that his rights to fair administrative action and fair hearing had been violated in the context of an election for the position of Speaker of the Senate – Constitution of Kenya 2010, articles 47 and

50. Civil Practice and Procedure - court filing fees - where the respondents were a State organ and persons that held a State office - whether the provisions of article 163(8) as read with section 31 of the Supreme Court Act, allowed for the waiver of court filing fees for such respondents - import of a circular issued by the then Chief Justice on December 17, 2015 on the payment of court fees by the National Government and its agencies - Constitution of Kenya 2010, articles 159 and 163(8); Supreme Court Act, section

31. Jurisdiction - jurisdiction of the Supreme Court - jurisdiction in matters of interpretation and/or application of the Constitution - whether the Supreme Court had jurisdiction over a matter concerning the eligibility requirements for a person to be elected as Speaker of the Senate as provided for under articles 106(1)(a) and 99 of the Constitution - Constitution of Kenya 2010, article 163(4)(a). Brief facts The appellant's case was about the validity of the election of the Speaker of the Senate on September 8, 2022. In the election, there were seven candidates and having secured the majority vote, the 3rd respondent was declared elected as Speaker of the Senate and sworn in. At the High Court, the appellant contended that he was the only one that was eligible for nomination to contest for the elections. He alleged that the other candidates failed to full eligibility requirements under articles 9(1) and 85 of the Constitution, and sections 13(1) and 22(1)(a) and 24(1) of the Elections Act. He said that he had no time to dispute the eligibility of the nominated candidates as the list of nominees was released a day before the disputed elections. He said that as the only eligible candidate, he ought to have been declared duly elected as Speaker of the Senate. The High Court noted that the appellant requested for the nomination papers of other candidates in the election and the request was declined. The court, questioned the appellant's assertion about the ineligibility of the other candidates as the appellant had not examined their nomination papers. The High Court's nding on the issue of ineligibility of the other candidates in the election was that no evidence was tendered in that respect. The High Court also found that the appellant had been allowed to participated in the elections and that since he had not received any votes, he could not be declared duly elected as Speaker of the Senate. The court further held that the appellant's contention that he was not given reasons as to why he was not declared the winner had no basis in article 47(2) of the Constitution as the provision was inapplicable to the circumstances. The High Court dismissed the petition. Aggrieved, the appellant led an appeal at the Court of Appeal. In upholding the decision of the High Court, the Court of Appeal found that the appellant did not present any witness testimonies or documents to support his allegation that the other candidates in the election were ineligible and could not participate in the election. The appellant led a second appeal at the Supreme Court.

Issues

i. What was the eect of an omission by respondents, who were a State organ and two State ocers, to pay the requisite fees attendant to the ling of court pleadings? ii. Whether the Supreme Court had jurisdiction to hear and determine a matter about the interpretation of article 99 as read with article 106 of the Constitution with respect to eligibility requirements for election as Speaker of the Senate. iii. What was the eect of an omission to utilize available statutory mechanism for redress where a request for information under article 35 of the Constitution was declined? iv. Whether the appellant had provided evidence to support his allegations that all candidates, except the appellant, in an election for the position of Speaker of the Senate, were ineligible to participate in the election. v. Whether an election process, in which an appellant had not been given reasons as to why he was not declared duly elected as Speaker of the Senate, where a dierent candidate in the election garnered a majority of the votes and the appellant's request for information that could have provided evidence in a claim relating to ineligibility of candidates in the election was declined, occasioned a violation of the right to fair administrative action.

Held

1. The appellant's objection in regard to the respondents' failure to pay the requisite fees attendant to the ling of court pleadings had nothing to do with the core issues that required the court's determination. The circular of December 17, 2015 issued by the then Chief Justice, was about waiver of fees for County Governments upon request being made by the Chairman of the Council of Governors. According to the then Chief Justice, it had been the practice in all courts in Kenya to exempt the National Government and its agencies from payment of court fees in line with the Constitution of Kenya 2010.

2. The mandate bestowed upon the Chief Justice as the head of the Judiciary and as the President of the Supreme Court, and the import of the provisions of article 163 (8) as read with section 31 of the Supreme Court Act, applicable at the time of the circular, the Chief Justice was within their rights to issue the directions in the circular dated December 17, 2015, and by operation of its practice, the Supreme Court adopted the directions in the circular.

3. The 1st respondent was a State organ, while the 2nd and 3 rd respondents each held a State oce. The pleadings led on behalf of the respondents were properly on record, and the court overruled the appellant’s objection in that respect. The rationale for the exemption was that requiring the State to pay court fees would be circular; amounting to the State paying itself.

4. Where ling fees had not been paid, the appropriate remedy would be for the court to direct the payment of the outstanding fees, as had been the practice in the lower courts. It was not an issue to engage an apex Court with. At any rate, the question of whether or not fees had been paid was a question of fact. Courts should always, however, be mindful of their mandate under article 159 of the Constitution, which was to administer justice without undue regard to procedure and technicalities.

5. The Supreme Court had jurisdiction to hear and determine the matter under article 163(4)(a) as it involved questions concerning the interpretation of the Constitution by the superior courts below. Particularly, the dispute was about the interpretation of article 99 as read with article 106 of the Constitution.

6. Article 106(1)(a) of the Constitution provided for the election of a Speaker for each House of Parliament from among persons qualied for election as member of Parliament. Article 99(1) of the Constitution provided for eligibility requirements for election as a member of Parliament. Therefore, the Supreme Court upheld the High Court's determination that article 99 was applicable to the election of the Speaker of the Senate.

7. The appellant's request for documents made under article 35 of the Constitution was partially declined by the 2nd respondent. While the application was for the register of the collection of nomination papers, the register of return of nomination papers and all nomination papers submitted by all persons who returned nomination papers, irrespective of whether or not their names were included in the ballot papers, only two documents relating to the registers were provided and the request for the nomination papers was declined on account of privacy.

8. The information requested by the appellant from the 2nd Respondent (which included nomination papers submitted by candidates for the election of Speaker), was information that was a public record, as it related to a publicly conducted nomination process for election to a public oce. Therefore, that information did not fall within the category of information falling in the exceptions provided for in section 6 (1) as read with section 5 of the Access to Information Act. However, the appellant inexplicably chose not to follow the prescribed statutory procedure and thus failed to exhaust the available remedies before ling his case in the High Court.

9. Senate ought to consider amending its Standing Orders to include a provision granting candidates for election to the position of Speaker reasonable and sucient access to all necessary documentation that they may require prior to and after such an election. That way, complaints about the fairness of the entire process would be eliminated, more so because the process of election of a Speaker transcended the individual interest of candidates and involved the wider public. The need for such information, including information relating to the candidate's qualications, to be made public ought not to be constrained by the strictures and demands of privacy per se.

10. The record showed that the appellant’s claim before the High Court was not supported by documents to prove that the 3rd respondent and the other nominated candidates were ineligible to vie for the position of Speaker of the Senate. The appellant only provided documents proving his own eligibility.

11. The appellant contended that the 3rd respondent had the burden of proving that he was nominated by his party, Pamoja Alliance Africa. The responsibility to prove a case remained with the party that initiated it, as stated in their pleadings, while the burden shifted only when adverse evidence was introduced; it would then become the duty of the opposing party to provide such evidence. It was therefore, and in that context, the appellant had the burden to present evidence showing, on the balance of probabilities, that his allegations were true. The appellant's evidence did not meet standards that would allow the burden of proof to shift.

12. The appellant's failure to include other candidates in the election as parties to the suit and failure to request documentation during the High Court trial impacted on his case. The Supreme Court agreed with the Court of Appeal's nding that the candidates needed to be parties to the suit and their individual and personal documents were theirs to produce once sued. Without an explicit request for documents that a party wished to rely on, a party to could not compel the court or the opposing party to assume that such documents existed only because a claim had been made.

13. The superior courts below were correct in their assessment that the appellant failed to prove his assertions, on the ineligibility of other candidates in the disputed election, on a balance of probabilities.

14. The process leading to the election and the election itself, showed that candidates were accorded ample time to campaign and vie for the elective position, the elections were conducted by secret ballot, all the nominees were granted the opportunity to have their respective agents witness the balloting and counting of votes and the 3rd respondents garnered 46 votes with other candidates having no votes.

15. It was correctly determined by the High Court and the Court of Appeal, that while the appellant claimed a breach of his rights to fair administrative action under article 47 of the Constitution, the appellant did not substantiate ways in which the right had been violated, and there was no sucient justication to warrant relief as related to the violation of the right.

16. The appellant was accorded a fair hearing by both courts below. The High Court and Court of Appeal determined the issues presented before them, and determined compliance with article 99 as read with article 106 of the Constitution in the armative. Displeasure with the nal orders of a court could not amount to violation of the right to fair hearing. Appeal dismissed. Citations Cases Kenya

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7. Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others Petition 5, 3 & 4 of 2013 (Consolidated); [2013] KESC 6 (KLR) - (Mentioned)

8. Odinga & another v Independent Electoral and Boundaries Commission & 2 others Election Petition 1 of 2017; [2017] KESC 32 (KLR) - (Followed)

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