[2013] KEHC 5190 (KLR)
The court dismissed the petition on the basis that George Washingtone Mallan Omondi, the party directly affected by the orders sought, was not joined as a party to the proceedings. The court held that it would be improper to make adverse findings or grant orders affecting a person who was not a party to the case....
Source-derived case information.
- Citation
- [2013] KEHC 5190 (KLR)
- Parties
- Petitioner: Edwin O. Yinda; Respondent: The Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 47 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Judges
- DAS Majanja, CC Kipkorir, GV Odunga
- Legal Topics
- Nomination Disputes, Candidate Qualification, Electoral Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin O. Yinda
Petitioner
The Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the respondent can lawfully receive and approve the nomination papers of George Washingtone Mallan Omondi for the Alego Usonga parliamentary seat on a different party ticket after participating in ODM nominations.
- 2 Whether the respondent is legally barred from considering George Washingtone Mallan Omondi's nomination papers due to prior participation and tribunal determination.
- 3 Whether the petition is properly constituted without joining the directly affected party, George Washingtone Mallan Omondi.
Ratio Decidendi
The court dismissed the petition on the basis that George Washingtone Mallan Omondi, the party directly affected by the orders sought, was not joined as a party to the proceedings. The court held that it would be improper to make adverse findings or grant orders affecting a person who was not a party to the case. Additionally, the court noted that any issues regarding Omondi's qualification to stand for election could be raised at the appropriate stage in the electoral process, rather than through the present petition. The court therefore found no merit in the petition and dismissed it without making any order as to costs.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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HON EDWIN O. YINDA ...........................................................................................PETITIONER
AND
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION........RESPONDENT
JUDGMENT
1. We dismissed the petition herein with no order as to costs on 31st January 2013.
2. By a petition dated 30th January 2013, the petitioner seeks the following orders;
(a)That a declaration be issued to declare that the respondent cannot lawfully receive and approve the nomination papers submitted by George Washingtone Mallan Omondi as a candidate for parliamentary seat of Alego Usonga on the ticket of United Democratic Front (UDF) or any other political party.
(b)That an order of permanent injunction be issued to restrain the respondent, its Constituency Electoral Coordinator Alego Usonga Constituency/returning officer, its officials, employees and agents from receiving nomination certificate and papers for George Washington Mallan Omondi on the ticket of the United Democratic Front (UDF) or any other political party.
(c)That a declaration be issued to declare that in view of his participation in ODM parliamentary nominations for Alego Usonga Constituency and Complaint against eh petitioner’s nomination adjudicated and determined by the Respondent’s tribunal on 28th January 2013 the respondent is legally barred from receiving and considering for approval the nomination papers submitted by Goerge Washingtone Mallan Omondi as a candidate of the United Democratic Forum (UDF) or any other political party.
(d)That the costs of this petition be borne by the respondent.
3. Mr Yinda, the petitioner, the ODM candidate for the Alego Usonga Constituency, was issued with a direct nomination after the primaries conducted on 17th and 18th January 2013 were wrought with chaos. George Washingtone Omondi, lodged a complaint with the IEBC but the complaint was duly dismissed.
4. George Omondi thereafter sought and obtained a nomination from the United Democratic Forum (UDF) to contest the Alego Usonga Constituency Seat. In the circumstances, the petitioner seeks to bar George Omondi from contesting the election.
5. Although we heard Mr Wasumma for Mr George Omondi, the party directly affected, he was not made party to these proceedings. In the circumstances, we do not think it is proper to make adverse finding on this respect.
6. We are also of the view that, if the issue is one of Mr George Omondi’s qualification to stand for election, it may be raised at an appropriate stage. In the circumstances, the petition is dismissed.
DatedandDelivered at Nairobithis 5th February 2013
D.S. MAJANJA
JUDGE
W. KORIR
JUDGE
G. V. ODUNGA
JUDGE