[2013] KEHC 5709 (KLR)
The court found that the ODM party list annexed to the affidavit confirmed Tabitha Gakii was number two on the list, and the first nominee was a man. The IEBC acted in accordance with the list submitted by the party. Furthermore, the court held that Tabitha Gakii, whose nomination was challenged, was not joined as a...
Source-derived case information.
- Citation
- [2013] KEHC 5709 (KLR)
- Parties
- Applicant: Alice Chepkirui Kering; Respondent: The Independent Electoral & Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 318 of 2013
- Procedural Posture
- Election Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Party List Nomination, Right to Be Heard, Gender Top Up, Electoral Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Chepkirui Kering
Applicant
The Independent Electoral & Boundaries Commission
Respondent
Procedural Posture
Election Petition / Judgment
Legal Issues
- 1 Whether the respondent erred in upholding the ODM list of nominees to Nakuru County Assembly.
- 2 Whether the petitioner was unlawfully excluded from the gender top up list.
- 3 Whether the absence of Tabitha Gakii as a party to the proceedings affects the validity of the petition.
Ratio Decidendi
The court found that the ODM party list annexed to the affidavit confirmed Tabitha Gakii was number two on the list, and the first nominee was a man. The IEBC acted in accordance with the list submitted by the party. Furthermore, the court held that Tabitha Gakii, whose nomination was challenged, was not joined as a party to the proceedings, and any adverse decision against her would violate her right to be heard. Therefore, the petition lacked merit both on substance and on procedural fairness grounds.
Court Disposition
petition dismissed
Orders
- The petition is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
PETITION NO 318 OF 2013
ALICE CHEPKIRUI KERING …………………………………………………………….PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION ………………….….………………………………RESPONDENT
JUDGMENT
The Petitioner, Alice Chepkirui Kering, is aggrieved by the decision of the respondent to uphold the ODM list of nominees to Nakuru County Assembly. She claims that the list of nominees does not conform to the list submitted to the IEBC by the party; that she was left out while she was number one on the gender top up list; that she was replaced by one Tabitha Gakii as the gender top up nominee for the County; and that her complaint to the respondent, No. IEBC/DRC/PL/20/2013 was dismissed.
The position taken by the respondent is that its decision to dismiss the petitioner’s complaint was in order. It had received the Party List for ODM in respect of Nakuru County on 30th January 2013. The nominee whose removal the petitioner seeks, Tabitha Gakii, was the second on the list, while the first was a man. It therefore nominated her as the ODM gender top up nominee for Nakuru County.
Determination
The court has noted from the party list for ODM annexed to the affidavit of Moses Kipkogei that the nominee, Tabitha Gakii, was indeed number two on the ODM list. Consequently, there is no basis for faulting the decision of the IEBC with regard to its decision in IEBC/DRC/PL/20/2013.
More importantly, however, is that the nominee, Tabitha Gakii, has not been joined as a party to these proceedings. Any adverse decision that would be made against her would be made without her being heard, a breach of her right to a hearing.
In the circumstances, this petition must fail and is dismissed with no order as to costs.
Dated, Delivered and Signed at Nairobi this 12th day of July 2013
MUMBI NGUGI D. S. MAJANJA WELDON KORIR
JUDGE JUDGE JUDGE