THE DOCTRINE OF EXHAUSTION IN CONSTITUTIONAL LAW

INTRODUCTION

The doctrine of exhaustion ensures the postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.

In the case of Muka & another v Malala & 12 others; Commission for University Education & 2 others (Interested Party) (Constitutional Petition E002 & E001 of 2022 (Consolidated)) [2022] KEHC 10131 (KLR) the doctrine of exhaustion was discussed to determine the constitutional question on whether the court had jurisdiction to validate or invalidate the nomination of Malala running for Kakamega governor's seat.

In brief, the facts of the case are that the 3rd and 4th respondents filed a preliminary objection on the grounds; that the petition and the application be dismissed for want of jurisdiction. They argued the petition and the application and by extension, the court was usurping the 3rd and 4th respondents’ jurisdiction and mandate to nominate, validate or invalidate the 1st respondent’s nomination.

Malala submitted article 88(4) of the Constitution of Kenya, 2010 the Independent Electoral and Boundaries Commission and the Returning Officer Kakamega County to determine pre-election disputes. Malala further argued that the jurisdiction of the court in pre-election disputes was supervisory. Therefore the court had no jurisdiction to handle nomination disputes at a preliminary stage,

The petitioners argued that the petition touched on the genuineness of academic documents presented by Malala to the IEBC and it did not have the mandate to determine the validity and genuineness of a document presented by an aspirant or candidate. The petitioners further argued that IEBC could not verify the legitimacy of Malala's academic documents.

ORDERS:-

The court made the following orders:-

1. The Constitution of Kenya,2010 assigned different organs jurisdiction to determine disputes in different categories and those organs and bodies ought to be allowed to execute their mandate.
2. Academic qualifications of a candidate vying for a governor's seat are legislated under article 180(2) as read with article 193(1)(b) of the Constitution of Kenya,2010  backed by section 22(1)(b)(ii) of the Elections Act. It was an indisputable fact that the candidate had to have a degree from a recognizable university to uphold moral standing in public office.
3. The rule of law had to be obeyed as a pillar of values and principles of governance.
4. The law had to be obeyed and before it locked a party from being heard by resorting to striking out the Petition, a full inquiry had to be conducted to verify the legitimacy of the academic documents presented.
5. It was an injustice to deny the right to access justice to accede to allow the preliminary objection and render the petitioners without a forum. A court of law could not deny a litigant audience and leave such a litigant without a recourse. This instant case was an exception to the doctrine of exhaustion.

CONCLUSION

The Preliminary objection was dismissed with costs.

Ruth Rotich is an Advocate of the High Court of Kenya, Member of the Young Lawyers Committee Law Society of Kenya; Owner of Legal Podcast WAKILI GUMZO, Human Rights Activist and an Academic Scholar.