[2017] KEHC 3103 (KLR)
The court declined to grant the ex-parte injunction restraining the swearing in of the 1st Respondent as a Member of the Meru County Assembly. The court reasoned that, unlike the presidency where the Constitution expressly bars swearing in pending determination of a petition, there is no such bar for county assembly...
Source-derived case information.
- Citation
- [2017] KEHC 3103 (KLR)
- Parties
- Applicant: Daniel Munywoki Mwangangi; Applicant: Ephraim Mwirigi Mbrurugu; Applicant: Stephen Muchena Kirigia; Applicant: Ntagangui Douglas M’Murithi; Applicant: Beatrice Mwendwa Kimathi; Applicant: Geoffrey Mawira Muguongo; Respondent: Asenath Kaimuri Nyamu; Respondent: Party of National Unity; Respondent: Independent Electoral Boundaries Commission (IEBC)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 20 of 2017
- Procedural Posture
- Election Petition / Ruling on Ex Parte Injunction Application
- Outcome
- Application for ex-parte injunction declined.
- Judges
- A Mabeya
- Legal Topics
- Representation of Persons With Disabilities, Nomination of Members, Injunctive Relief, County Assembly Membership, Threshold for Interim Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Munywoki Mwangangi
Applicant
Ephraim Mwirigi Mbrurugu
Applicant
Stephen Muchena Kirigia
Applicant
Ntagangui Douglas M’Murithi
Applicant
Beatrice Mwendwa Kimathi
Applicant
Geoffrey Mawira Muguongo
Applicant
Asenath Kaimuri Nyamu
Respondent
Party of National Unity
Respondent
Independent Electoral Boundaries Commission (IEBC)
Respondent
Procedural Posture
Election Petition / Ruling on Ex Parte Injunction Application
Legal Issues
- 1 Whether the court should grant an ex-parte injunction restraining the swearing in of the 1st Respondent as a Member of the Meru County Assembly pending determination of the petition.
- 2 Whether the nomination of the 1st Respondent contravened constitutional and statutory provisions on representation of persons with disabilities.
Ratio Decidendi
The court declined to grant the ex-parte injunction restraining the swearing in of the 1st Respondent as a Member of the Meru County Assembly. The court reasoned that, unlike the presidency where the Constitution expressly bars swearing in pending determination of a petition, there is no such bar for county assembly members. Public interest dictates that county assemblies should continue to function normally while disputes over membership are resolved. The court found that no irreversible prejudice would be suffered by the applicants if the orders sought were not granted at this stage, and directed that the motion be served for inter-partes hearing.
Court Disposition
Application for ex-parte injunction declined.
Orders
- The application for an ex-parte injunction is declined.
- The motion to be served for hearing inter-partes on a date to be taken at the registry.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
PETITION NO 20 OF 2017
THE ELECTIONS ACT, 2011
IN THE MATTER OF OF: CONTRAVENTION OF ARTICLES 90 (1) (2), 54 (2), 56 (a) 177 (C), 21 (3) OF THE CONSTITUTION OF KENYA
IN THE MATTER OF: CONTRAVENTION OF SECTION 34 & 36 OF THE ELECTIONS ACT, 2011
IN THE MATTER OF: THE ELECTIONS (PARLIAMENTARY AND COUNTRY ELECTIONS) PETITION RULES, 2013
IN THE MATTER OF: ALLEGED CONTRAVENTION OF REGULATION 54 (1) AND (3) OF THE ELECTIONS (GENERAL) REGULATIONS 2012
DANIEL MUNYWOKI MWANGAGI..........................1STPETITIONER
EPHRAIM MWIRIGI MBRURUGU..........................2ND PETITIONER
STEPHEN MUCHENA KIRIGIA...............................3RD PETITIONER
NTAGANGUI DOUGLAS M’MURITHI......................4TH PETITIONER
BEATRICE MWENDWA KIMATHI............................5TH PETITONER
GEOFFREY MAWIRA MUGUONGO........................6TH PETITIONER
VERSUS
ASENATH KAIMURI NYAMU...............................1ST RESPONDENT
PARY OF NATIONAL UNITY................................2ND RESPONDENT
INDEPENDENT ELECTIORAL BOUNDARIES
COMMISSION (IEBC) ……..……….............…3RD RESPONDENT
RULING
1. Before me is an application under Order 40 rules 1, 2, 3, 4 and 15 of the civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 19, 21, 54 and 56 of the Constitution. The application seeks an ex-parte order of injunction to restrain the 3rd Respondent, the Clerk of Meru County Assembly, from swearing in the 1st Respondent on the 7th September, 2017 as a Member of the Meru County Assembly.
2. The grounds for the application are contained in the main body of the Motion as well as the Supporting Affidavit of Daniel Munywoki Mwangangi. These are that the Applicants are persons living with disability within Meru County; that the 2nd Respondent has been nominated to the Meru County Assembly yet she is not a person living with disability and that the Meru County Assembly will as a result be constituted unconstitutionally as the representation of the persons living with disability will be 0. 68% instead of 5% as required by Article 54 (2) of the Constitution.
3. It is for the foregoing reasons that the Applicants urged through their Learned Counsel Mr. Otieno that a temporary order of injunction be issued as aforesaid.
4. I have carefully considered the Affidavits on record and the submissions of Counsel. This is a Petition challenging the election or nomination of the 1st Respondent to the Meru Country Assembly as representative of persons with disability under Article 177 (c) of the Constitution.
5. The foregoing being the case, the process of such a challenge is to be mounted in the Election Court (see the decision of the Supreme Court in Moses Mwicigi & 14 Others v IEBC& 2 Others (2016) eKLR. That being the case, the question is whether this Court should stop the swearing in of the 1st Respondent as a Member of the Meru County Assembly at this stage pending the hearing and determination of the Petition.
6. Whilst the Constitution expressly bars a person elected as President in an election from being sworn in as President before a Petition challenging his election is determined, there is no such bar in respect of a Member of the County Assembly. The reason being that public interest requires that the County Assemblies should be left to operate and function normally pending the resolution of any disputes pending on their membership.
7. In view of the foregoing, I find that no irreversible prejudice will be suffered by the Applicants if the orders sought are not granted at this stage ex-parte. Accordingly, the application is declined. Let the Motion be served for hearing inter-parties on a date to be taken at the registry.
It is so ordered.
DATED AND DELIVERED INMERU THIS 6TH DAY OF SEPTEMBER, 2017.
A. MABEYA
JUDGE
06/09/2017