[2013] KEHC 5162 (KLR)
The court found that the petitioner was not privy to the concession upon which the IEBC Nomination Disputes Resolution Committee based its decision, and thus was denied a fair hearing. Since the decision was made without his participation and without considering his evidence, the court held that the decision was...
Source-derived case information.
- Citation
- [2013] KEHC 5162 (KLR)
- Parties
- Petitioner: Anthony Kimemia Gathumbi; Respondent: The National Alliance Party (TNA); Respondent: Independent Electoral and Boundaries Commission; Respondent: Johnson Maina Mwai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 70 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Decision of the IEBC Nomination Disputes Resolution Committee set aside; matter remitted for rehearing.
- Judges
- DAS Majanja, DO Ogembo, GV Odunga
- Legal Topics
- Party Nominations, Electoral Disputes, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Kimemia Gathumbi
Petitioner
The National Alliance Party (TNA)
Respondent
Independent Electoral and Boundaries Commission
Respondent
Johnson Maina Mwai
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the petitioner was denied a fair hearing in the party nomination dispute process.
- 2 Whether the decision of the IEBC Nomination Disputes Resolution Committee was valid given the concession was made without the petitioner.s participation.
- 3 Whether the petitioner is entitled to be declared the party nominee for the Harambee County Assembly Ward.
Ratio Decidendi
The court found that the petitioner was not privy to the concession upon which the IEBC Nomination Disputes Resolution Committee based its decision, and thus was denied a fair hearing. Since the decision was made without his participation and without considering his evidence, the court held that the decision was procedurally unfair and must be set aside. However, as the 3rd respondent was not heard in this petition, the court declined to grant the declarations sought by the petitioner and instead directed that the IEBC Nomination Disputes Committee rehear the matter, taking into account all relevant circumstances and ensuring all parties are heard.
Court Disposition
Decision of the IEBC Nomination Disputes Resolution Committee set aside; matter remitted for rehearing.
Orders
- The decision of the NDRC in NDRC Case No. 98 of 2013 is set aside.
- The IEBC Nomination Disputes Committee is directed to rehear the matter, taking into account the circumstances of the case.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Milimani Commercial Courts)
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ANTHONY KIMEMIA GATHUMBI ..........................................................................PETITIONER
AND
THE NATIONAL ALLIANCE PARTY (TNA).................................................1ST RESPONDENT
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION..........2ND RESPONDENT
JOHNSON MAINA MWAI ............................................................................3RD RESPONDENT
JUDGMENT
1. The petitioner in this matter has moved the court for orders whose effect is that he be cleared to contest the Harambee County Assembly Ward Seat, Nairobi County on the National Alliance Party ticket. His case is that he won the party nomination that was carried out on 18th November 2012 and was issued with a certificate.
2. The petitioner later came to learn that a complaint had been presented against him by the 3rd respondent. From the material before us, the IEBC Committee in NDRC Case No. 98 of 2013 in its decision stated, “the complaint is hereby allowed. A concession between the complainant and TNA was entered that Mr Maina wa Mwai be given the nomination and the name be included in the nomination list.” The petitioner’s complaint is that he presented evidence challenging the 3rd respondent’s case before the Committee that he was a member of another party but the case was concluded on the basis of a concession to which he was not privy rather than on the evidence.
3. Both the counsel for the party, Ms Milimu and counsel for the petitioner, Dr Khaminwa agree that there is no candidate for the said party for that slot due to an erroneous declaration that the 3rd respondent was its candidate yet the said person had moved to another party and had indeed been nominated. Mr Muhoro, counsel for the IEBC, left it to the Court to decide the matter.
4. As the petitioner was not privy to the concession upon which the decision was made and since he was directly we have no option but to set aside the decision of the NDRC. As we did not hear the 3rd respondent, we cannot grant the declarations sought, consequently we direct the IEBC Nomination Disputes Committee to rehear the matter taking into account the circumstances of the case.
DatedandDelivered at Nairobithis 6th February 2013.
D.S. MAJANJA
JUDGE
E. OGOLA
JUDGE
G. V. ODUNGA
JUDGE