[2013] KEHC 5667 (KLR)
The court found that the 1st Respondent acted on the party list submitted by the Interested Party (ODM) and that any dispute regarding the composition of that list should have been addressed through the internal party dispute resolution mechanisms or, failing that, before the Political Parties Disputes Tribunal as...
Source-derived case information.
- Citation
- [2013] KEHC 5667 (KLR)
- Parties
- Applicant: Fidelia J Kiptoo; Respondent: The Independent Electoral and Boundaries Commission; Respondent: Hon. Attorney General; Respondent: The Orange Democratic Movement
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 327 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- petition dismissed
- Legal Topics
- Party Nominations, Gender Top Up Seats, Internal Party Disputes, Political Parties Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelia J Kiptoo
Applicant
The Independent Electoral and Boundaries Commission
Respondent
Hon. Attorney General
Respondent
The Orange Democratic Movement
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the 1st Respondent acted unconstitutionally in replacing the Petitioner in the Gender Top Up category for Makueni County Assembly.
- 2 Whether the dispute regarding the party list should have been resolved through internal party mechanisms or the Political Parties Disputes Tribunal.
- 3 Whether the failure to enjoin Peninah Wayua Musyoka affected the competence of the petition.
Ratio Decidendi
The court found that the 1st Respondent acted on the party list submitted by the Interested Party (ODM) and that any dispute regarding the composition of that list should have been addressed through the internal party dispute resolution mechanisms or, failing that, before the Political Parties Disputes Tribunal as mandated by the Political Parties Act. The court further noted that the Petitioner failed to enjoin Peninah Wayua Musyoka, whose interests would be directly affected by the outcome of the petition. Consequently, the court held that the petition was not properly before it and dismissed it for lack of merit.
Court Disposition
petition dismissed
Orders
- The petition is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. 327 OF 2013
FIDELIA J KIPTOO.....................................................PETITIONER
VERSUS
THE INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION......................1ST RESPONDENT
HON. ATTORNEY GENERAL ...............................2ND RESPONDENT
THE ORANGE DEMOCRATIC MOVEMENT.......INTERESTED PARTY
JUDGEMENT
The Petitioner, Fidelia J Kiptoo, was the complainant before the Disputes Resolution Tribunal (the Committee) in COMPLAINT NO. IEBC/NDRC/PL/171/2013- FIDELIA KIPTOO v ODM. The Committee was created by the Independent Electoral and Boundaries Commission (IEBC), the 1st Respondent, to hear disputes arising out of nominations made by political parties in respect of the seats envisaged by Article 177(1)(b) and (c) of the Constitution. The Petitioner’s complaint was in respect of nominations made by the Interested Party to the Makueni County Assembly.
The Committee held that the dispute was an internal party affair and there was no evidence adduced to show that the party had not followed due process.
The Petitioner being aggrieved by the decision of the 1st Respondent filed this petition seeking various declarations. It is the Petitioner’s case that she was number one in the Gender Top Up category in the list submitted to the 1st Respondent on 19th January, 2013 by her party, the Orange Democratic Movement (ODM), the Interested Party. She argues that in the list published, a nominee by the name Peninah Wayua Musyoka who was in the marginalized category was shifted to replace her. It is the Petitioner’s case that the action of the 1st Respondent was unconstitutional.
The 1st Respondent opposed the application through the replying affidavit sworn on 4th July, 2013 by its legal officer, Moses Kipkogei. It is the 1st Respondent’s case that the name of Peninah Wanyua Musyoka was in the Gender Top Up category of the list submitted by ODM on 30th January, 2013 and the petition therefore lacks merit.
We have considered the submissions of the parties herein and find that:-
The 1st Respondent acted on the party list submitted to it by the Interested Party. Any dispute concerning that list ought to have been addressed using the internal party mechanism for resolving disputes, failure to which the matter should have been placed before the Political Parties Disputes Tribunal created by the Political Parties Act.
The 1st Respondent considered the issues placed before it before dismissing the Petitioner’s complaint.
The Petitioner has not enjoined Peninah Wayua Musyoka who would be affected by any adverse decision in this matter.
For the foregoing reasons, we dismiss this petition with no order as to costs.
Dated, signed and delivered at Nairobi this 12th day of July, 2013
MUMBI NGUGI, D. S. MAJANJA, W. K. KORIR,
JUDGE JUDGE JUDGE