[2013] KEHC 5731 (KLR)
The court held that neither the IEBC nor the court has jurisdiction to resolve internal party disputes regarding the preparation and submission of party lists for county assembly nominations. Such disputes are to be addressed within the party's own mechanisms as provided under Section 40 of the Political Parties...
Source-derived case information.
- Citation
- [2013] KEHC 5731 (KLR)
- Parties
- Petitioner: David Major Malala; Respondent: Independent Electoral & Boundaries Commission; Respondent: Orange Democratic Movement
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 300 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Party List Nominations, Internal Party Disputes, County Assembly Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Major Malala
Petitioner
Independent Electoral & Boundaries Commission
Respondent
Orange Democratic Movement
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the list submitted by ODM to the IEBC for Kakamega County Assembly nominations was valid and complied with constitutional and statutory requirements.
- 2 Whether the IEBC or the court has jurisdiction to resolve internal party disputes regarding party lists.
Ratio Decidendi
The court held that neither the IEBC nor the court has jurisdiction to resolve internal party disputes regarding the preparation and submission of party lists for county assembly nominations. Such disputes are to be addressed within the party's own mechanisms as provided under Section 40 of the Political Parties Act. The court found that the IEBC acted correctly in relying on the list submitted by the party headquarters and not the county branch, and that the petitioner's grievances related to internal party processes, not matters for judicial or IEBC intervention. Consequently, the petition was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
PETITION NO 300 OF 2013
DAVID MAJOR MALALA ……………………………………………………………..PETITIONER
VERSUS
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION ………………………………………….…….1ST RESPONDENT
ORANGE DEMOCRATIC MOVEMENT …………......………………………. 2ND RESPONDENT
JUDGMENT
The petitioner’s complaint in this matter is that the list submitted by the Orange Democratic Movement (ODM) to the 1st respondent is not the genuine list agreed upon by the Kakamega Branch of ODM. The applicant contends that the list submitted by the party had errors and included persons unknown to the ODM Kakamega Branch. He contends that the list breaches Article 90 as it does not reflect the regional and proportionate balance within Kakamega County as smaller counties with lesser populations get more representation on the County Assembly, and is aggrieved by the decision of the 1st respondent made on 7th June 2013 in which it dismissed his complaint without giving reasons.
The position taken by the respondent is that it complied with the law in allocating the gender top up and marginalized seats for the Kakamega County Assembly. It contends that under Article 177 (c) and (d), the preparation and submission of party lists is the preserve of the party and within its exclusive jurisdiction; that the 2nd respondent submitted its list on 30th January 2013, which list was rejected for non-compliance with section 36(2) of the Elections Act; that a second, compliant list was submitted on 2nd March 2013, and it was on the basis of this list that the gender top up and marginalized category nominations was done. It submits that its decision of 7th June 203 was therefore correct, and asks the court to dismiss this petition with costs.
Determination
The court notes that the 1st respondent, in determining the applicant’s complaint in IEBC/NDRC/155/2013 in its decision of 7th June 2013, allowed it to the extent of replacing one Josephine Nakesa Samba’s name with that of Asia Hassan Mohamed who was above her in the list and had been indicated as male.
The gist of the petitioner’s complaint before us and before the 1st respondent is that the 1st respondent acted on the list submitted by the party, rather than on the wishes and on the list submitted by the County Branch of the party. The position taken by the 1st respondent in this matter is, in our view, correct. Neither the IEBC nor this court can enter into internal party disputes within ODM, which are subject to Section 40 of the Political Parties Act. If indeed the list submitted by the Kakamega Branch of ODM was altered by the party headquarters, that is a dispute involving the party and its branches. It cannot be the subject of resolution either by the 1st respondent or the court.
In the circumstances, this petition 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