[2011] KEHC 175 (KLR)
The court found that while the issue of registration and participation of Kenyans living outside the country is new and has not previously been judicially determined, there is nothing so novel or complex in the matter that cannot be adequately and expeditiously handled by a single judge of the High Court. The mere...
Source-derived case information.
- Citation
- [2011] KEHC 175 (KLR)
- Parties
- Petitioner: Eric Barare Orina; Respondent: Interim Independent Electoral Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 69 of 2011
- Procedural Posture
- Constitutional Petition / Ruling on Application for Empanelment of 3 Judge Bench
- Outcome
- Application for empanelment of a 3-judge bench declined.
- Legal Topics
- Political Rights, Right to Vote, Diaspora Voting, Substantial Question of Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Barare Orina
Petitioner
Interim Independent Electoral Commission
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Empanelment of 3 Judge Bench
Legal Issues
- 1 Whether the failure to register Kenyans living outside the country as voters violates Article 38 of the Constitution.
- 2 Whether the petition raises a substantial question of law requiring empanelment of a 3-judge bench under Article 165(4).
Ratio Decidendi
The court found that while the issue of registration and participation of Kenyans living outside the country is new and has not previously been judicially determined, there is nothing so novel or complex in the matter that cannot be adequately and expeditiously handled by a single judge of the High Court. The mere novelty of a legal issue does not, in itself, constitute a substantial question of law under Article 165(4) of the Constitution. Therefore, the application for referral to the Chief Justice for constitution of a 3-judge bench was declined.
Court Disposition
Application for empanelment of a 3-judge bench declined.
Orders
- The matter is to proceed before a single judge of the High Court.
- Parties to take a date for hearing of the petition.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (CENTRAL REGISTRY)
CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION)
PETITION NO. 69 OF 2011
ERIC BARARE ORINA......................................................................... PETITIONER
V E R S U S
INTERIM INDEPENDENT ELECTORAL COMMISSION................ RESPONDENT
R U L I N G
1. The Petition before this court dated 4th May, 2011 seeks among other orders, a declaration that the failure by the Interim Independent Electoral Commission to register Kenyans living outside the country as voters is a denial of their political rights provided for in Article 38 of the Constitution.
2. On 19th October, 2011, and pursuant to directions of the Chief Justice in his Practice Note dated 25th September, 2011, I directed the parties to file written submissions on why this matter should be placed before a 3-judge bench pursuant to the provisions of Article 165(4) as raising a substantial question of law. The Petitioner had applied for the matter to be referred to the Chief Justice for Constitution of a 3-judge bench.
3. Both the Petitioner and the Respondent have filed their submissions. In his submissions dated 19th October, 2011, the Petitioner sets out what he says are substantial questions of law for determination by the court which are raised by the Petitioner. He does not state why these questions are substantive and why they cannot be determined by a single judge.
4. On its part, in its submissions dated 3rd November, 2011, the Respondent submits that the Petitioner does not raise a substantial question of law to warrant the constitution of a 3- Judge Bench by the Chief Justice. It submits that the novelty of a legal matter does not and cannot be construed to be a substantial question of law. It submits that the petition can be adequately handled by a single judge of the High Court.
5. I have considered both the prayers sought in the Petition and the respective submissions of the parties. The Petition relates to the right to political participation by Kenyans living outside the country. While the issue of registration and participation of Kenyans living outside is new and has not been the subject of judicial determination, there is nothing so novel or complex in the matter, or the issue for determination by the court, that cannot be handled adequately and expeditiously by a single judge of the High Court.
6. I therefore decline to certify the matter as raising a substantial question of law requiring to be heard by an uneven number of judges.
7. I direct that the parties take a date for hearing of the
petition before a single judge of the High Court.
Dated and delivered at Nairobi this 21st day of November, 2011.
Mumbi Ngugi
Judge.